Document - USA: The execution of mentally ill offenders

TABLE OF CONTENTS

Overview: A gap in the ‘evolving standards of decency’ 2

Background information and scope of this report 15

Reality check 1 – Existing protections are clearly not enough 21

Reality check 2 – Insane in most people’s books yet executed 25

Reality check 3 – ‘Guilty but mentally ill’ and sentenced to die 30

Reality check 4 – Finality at the expense of fairness? 36

Waiting for the evolution: state law as a measure of ‘decency’ 42

‘Mindless vengeance’: Would-be goals of death penalty fail 48

Protecting the dignity of society 51

In denial: Burying society’s mistakes 56

Subjective opinion & inexact science in an adversarial system 59

The mentally ill: Also at ‘special risk of wrongful execution’? 67

A double-edged sword: aggravator and mitigator? 69

Apparently motiveless crimes 74

Particularly "aggravated" crimes 76

Easy prey for unscrupulous police and prosecutors 81

Poor witnesses on their own behalf 87

Especially vulnerable to inadequate defence representation 92

Drugged defendants 94

Racial, cross-cultural and cumulative aspects in a broken system 98

Competence to stand trial 106

Death wish 1 – Competence to waive counsel or plead guilty 111

Death wish 2 – Competence to waive appeals 115

Competency for execution – the 20-year failure of Ford 120

A roll call of shame: Time for majority judicial intervention 124

Curing to kill – masking insanity with medication 132

A question of medical ethics 134

Found incompetent but still on death row 136

Unethical: Psychiatric testimony used to kill 137

Mental illness on or because of death row 143

Cycle of violence – from the home to the death chamber 148

Killing state: the soldier and the executioner 153

Conclusion: The worst of the worst, or a failure of leadership? 164

Recommendations 167

Appendix 1 – Illustrative list of 100 executed prisoners 170

Appendix 2 – Recommendations of an ABA Task Force 189

UNITED STATES OF AMERICA

The execution of mentally ill offenders

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I cannot believe that capital punishment is a solution – to abolish murder by murdering, an endless chain of murdering. When I heard that my daughter’s murderer was not to be executed, my first reaction was immense relief from an additional torment: the usual catastrophe, breeding more catastrophe, was to be stopped – it might be possible to turn the bad into good. I felt with this man, the victim of a terrible sickness, of a demon over which he had no control, might even help to establish the reasons that caused his insanity and to find a cure for it...

Mother of 19-year-old murder victim, California, November 1960(1)

Today, at 6pm, the State of Florida is scheduled to kill my brother, Thomas Provenzano, despite clear evidence that he is mentally ill.... I have to wonder: Where is the justice in killing a sick human being?

Sister of death row inmate, June 2000(2)

I’ve got one thing to say, get your Warden off this gurney and shut up. I am from the island of Barbados. I am the Warden of this unit. People are seeing you do this.

Final statement of Monty Delk, mentally ill man executed in Texas on 28 February 2002

Overview: A gap in the ‘evolving standards of decency’

The underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill, namely evolving standards of decency.

Indiana Supreme Court Justice, September 2002(3)

On 30 May 2002, a jury in Maryland sentenced Francis Zito to death. It had earlier convicted him of shooting two police officers at point-blank range in February 2001 after they came to his trailer home in response to a complaint that he was playing music too loud. The killings were as brutal as they were apparently motiveless. The crime is not the whole story, however. Francis Zito had long suffered from serious mental illness, including a combination of schizophrenia and bipolar disorder, for which he had been hospitalized some two dozen times in the previous decade, but for which he was not taking medication at the time of the crime.

Francis Zito’s pre-trial detention was spent in a psychiatric hospital. At a subsequent hearing, doctors for the defence said he was not competent to stand trial, while others for the prosecution said that he had regained competence after his treatment. The court decided that he was competent and the trial went forward. Interviewed on the opening day, the prosecutor summed up the state’s theory: "You can have a mental illness and still be capable of understanding your actions. That’s the case with Mr Zito. This isn’t going to be rocket science. He was right there on planet Earth in Centreville, Maryland. He knew they were police officers."(4) For the defence, the plea was one that Francis Zito was not criminally responsible by reason of insanity. At the trial, during which the defendant had difficulty focussing on the proceedings, and would repeatedly stand or speak out of turn, the jury rejected the plea and found him guilty of first-degree murder. At the sentencing, the defence lawyer appealed to the jury to reject execution: "The death penalty is reserved for the worst of the worst. Frank Zito is not the worst of the worst". For his part, the prosecutor urged the jury instead to recall the crime and the suffering of the relatives, saying "I can’t think of anything worse".(5) After six hours of deliberation, the jury sent Zito to join the large number, believed to be hundreds, of people on death rows in the United States of America (USA) with histories of serious mental illness.(6)

Ten years before Francis Zito was sent to death row, Ricky Ray Rector was taken off it and executed. His is one of the defining cases of the "modern" era of judicial killing in the USA. To this day, that such a severely brain-damaged man could be found competent to stand trial, and then competent to be executed, still defies belief. Once the courts had washed their hands of his fate, the politics of the death penalty ensured the execution of this African American man sentenced to death by an all-white jury for killing a white police officer in Arkansas in 1981.

Ricky Rector had shot himself in the head prior to his arrest. The bullet wound and subsequent surgery resulted in the loss of a large section of the front of his brain. As his execution approached, the death watch log maintained by prison personnel at the Cummins Unit in Varner revealed an inmate displaying clear signs that he was seriously mentally disabled. The log’s entry for 21 January 1992, for example, described Ricky Rector as "dancing in his cell.... Howling and barking while sitting on his bunk.... Walking back and forth in the Quiet Cell snapping his fingers on his right hand and began noises with his voice like a dog." Whether or not to proceed with his execution, a journalist later wrote, "became a test in Arkansas of the lengths to which a society would pursue the old urge to expiate one killing by performing another – and a test of the state’s highest temporal authority, the governor, who alone could stop it."(7)

The Arkansas governor, who at the time was seeking the highest office in the country, chose not to stop it. Breaking off from presidential campaigning, Governor Bill Clinton flew back from New Hampshire for Ricky Ray Rector’s execution. This calculated killing, when it came on 24 January 1992, had a final outrage in store. The execution team had to search for 50 minutes to find a suitable vein in which to insert the lethal injection needle. Rector, apparently not comprehending what was happening to him, helped them in their macabre task. Earlier, as was his daily habit, he had left the slice of pecan pie from his final meal "for later". And shortly before that, catching a glimpse of Governor Clinton on the television news, Ricky Rector told one of his lawyers, "I’m gonna vote for him for President".

Some people did get access to come into my brain against every law and make odvious scrabble word games and show me horrible gouls lunging at my face like every dam second of every dam day and knight now for 2 years…It’s torture. I can’t sleep hallucinating with all of these voices I hear. Medical help needed right away!

Thomas Provenzano, grievance form, 1 August 1995, death row Florida. Thomas Provenzano was executed in 2000. [Spelling as in original.]

In 1999, US Supreme Court Justice Anthony Kennedy wrote: “It must be remembered that for the person with severe mental illness who has no treatment the most dreaded of confinements can be the imprisonment inflicted by his own mind, which shuts reality out and subjects him to the torment of voices and images beyond out own powers to describe”. Olmstead v. L.C., 527 U.S. 581 (1999).

On 14 August 2000, President Clinton, approaching the end of his term in office, described his country as "the leading force for human rights in the world" and one that was "more decent, more humane" than it had been eight years earlier.(8) He made his claim in the same month that 10 more people died in his country’s death chambers, including at least four who had serious mental impairments,(9) and only a matter of weeks after an execution that echoed that of Ricky Ray Rector in 1992. This time it was Thomas Provenzano, a prisoner with a long history of mental illness, who was put to death in Florida. A judge ruled him competent for execution despite finding "clear and convincing evidence that Provenzano has a delusional belief that the real reason he is being executed is because he is Jesus Christ". On 20 June 2000, Thomas Provenzano was strapped to a gurney and had the lethal injection needles inserted in his arms. Eleven minutes before he was due to be killed, a federal court issued a stay of execution. The needles were withdrawn and he was taken back to his cell. A few hours later, the court lifted the stay, without comment, and Thomas Provenzano was put through the same procedure again. This time he was killed.

Terminology used in this report Terminology used in discussing mental health is subject to wide variation both nationally and internationally. The most widely recognized sources of medical definitions in mental health are the Diagnostic and Statistical Manual of the American Psychiatric Association, Fourth Edition (DSM-IV) and the International Classification of Diseases, of the World Health Organization Edition of the World Health Organization (ICD-10).(10) These definitions can be technical and very detailed. Key concepts used in this report are defined below. Simplified explanations of particular mental disorders are given on pp.18-19. Mental disorder: This term encompasses all types of problem with mental function including mental illness, arrested or incomplete development of mind (known as mental retardation), psychopathic disorder and any other disorder or disability of the mind. Mental illness: This term refers to disorders of thought, mood or behaviour. They are unrelated to intelligence and many can be treated effectively. Examples include depression, anxiety, and psychosis. Mental retardation: This refers to arrested or incomplete development of intellectual capacity. It starts in childhood and is irreversible. It is not curable, though education and training can improve the life skills of many of those with this disability. Insanity: The definition of insanity is a legal rather than medical concept. The first concept of insanity was drawn from English common law (the M’Naghten Rule) and stated that accused persons were absolved of criminal responsibility if they were incapable of understanding their action or its wrongfulness. A finding of insanity could lead to acquittal on these grounds. More recently the concept of "volition" – the capacity of the person to ensure that their behaviour conforms to the law – was introduced in US jurisprudence. A person unable to conform to legal requirements may be ruled to have a diminished level of responsibility. Competence: Like insanity, competence is a legal, rather than medical, term. In the USA and many countries, an accused or convicted person must have a capacity to understand the legal process they face and the possible consequences of that process in order to be liable to trial or punishment. Competence must be demonstrated to proceed with a trial, with sentencing the prisoner or with carrying out an execution.

President Clinton’s successor arrived in the White House with his record on the death penalty well known. George W. Bush’s five years as governor of Texas had seen 152 executions in that state, one in five of all executions nationwide in the previous quarter of a century. However, with national concern about the fairness and reliability of the capital justice system on the increase, a small sign that the death penalty was perhaps no longer the unadulterated vote-winner in the USA that it had been perceived to be in 1992 was that during the 2000 presidential campaign, Governor Bush was placed on the defensive about his support for executions. Campaigning in Iowa in January 2000, for example, Governor Bush came under pressure to stop the execution of Larry Robison, a man with paranoid schizophrenia who had been denied appropriate mental health care before his crime. The Dallas Morning News wrote that the governor "has a responsibility to step away from the campaign trail" to oppose Larry Robison’s killing, adding that "executing a criminal who suffered from mental illness before he murdered and who lacked the resources for psychiatric care serves no public purpose".(11) The grassroots advocacy organization, the National Alliance for the Mentally Ill (now NAMI), appealed to the Governor not to "compound the tragedy of [Robison’s] crimes and the failures of the mental health system with the cruelty of a criminal justice system that lacks compassion", a veiled reference to the governor’s campaigning platform of "compassionate conservatism". In the event, conservatism rather than compassion won the day, and the governor refused to intervene. His spokesman said that the governor had supported increased funding for mental health services in Texas, and was not responsible for any inadequacy in treatment afforded to Larry Robison years earlier.

In addition to the obvious suffering due to mental disorders, there exists a hidden burden of stigma and discrimination faced by those with mental disorders. In both low- and high-income countries, stigmatization of people with mental disorders has persisted throughout history, manifested by stereotyping, fear, embarrassment, anger and rejection or avoidance. Violations of basic human rights and freedoms and denial of civil, political, economic, social and cultural rights to those suffering from mental disorders are a common occurrence around the world, both within institutions and in the community. Physical, sexual and psychological abuse is an everyday experience for many with mental disorders. In addition, they face unfair denial of employment opportunities and discrimination in access to services, health insurance and housing policies. World Health Organization, 2005 (WHO Resource Book on Mental Health, Human Rights and Legislation,)

More than 800 men and women have been put to death in the USA since Ricky Ray Rector was executed in 1992. Dozens of these people had histories of serious mental impairment, either from before the crimes for which they were sentenced to death, or at the time of their execution. Some had mental retardation(12), others suffered from mental illness, and some were diagnosed with both. For some, the diagnosis was of mental disorders caused by appalling childhood abuse, prison violence, or their experiences as soldiers sent into combat by their government. For others, mental illness appears to have been inherited. For some of those executed, years on death row had led to mental health problems or exacerbated existing ones. Mentally ill inmates are among the more than 100 people since 1977 to have dropped their appeals and "consented" to their own execution, a death wish made possible by a state all too willing to see freedom of choice for such individuals carried through to its lethal conclusion.

You know, we recognize that we are not perfect people, that we suffer from infirmities of the mind, and that’s all right. What’s important is that all our mistakes are made of the mind and not the heart, and if we can do these things, we can live with them. White judge to an all-white jury which had just voted for the death penalty for Howard Gooden, a mentally ill African American man, 19 May 1999, Mississippi.

In some cases, there were serious doubts about the defendant’s competence to stand trial – whether they genuinely understood the nature and seriousness of the proceedings against them or had the capacity to assist in their defence. Some had been restored to competency in psychiatric hospitals after their crimes, including with anti-psychotic medication. Doubts existed also in some cases about the defendants’ competence to plead guilty or to waive trial counsel and to represent themselves – indeed, some mentally ill defendants have demanded the death penalty as part of an apparent suicide bid.(13) Some may even have committed murder in order to get a death sentence. In some cases, inadequate legal representation left juries unaware of the existence or extent of the mental impairment of the person they were being asked to sentence to death. In other cases, protecting their mentally ill clients from the death penalty proved an insurmountable challenge for under-resourced defence lawyers. Perhaps the defendant was medicated into a haze of non-cooperation, appearing to the jury as remorselessness – a highly aggravating factor in the life or death decisions of capital jurors. Or perhaps the defendant’s delusional illness rendered them unwilling to divulge information to a lawyer or doctor believed to be part of a conspiracy against them.

For some, a prosecutorial willingness to denigrate evidence of mental disability or even to portray such impairment as a sign of a person’s dangerousness and thus a reason against leniency, may have tipped their punishment towards a death sentence, rather than life imprisonment. In some cases, medical professionals joined in an unethical pact with the state to predict with absolute certainty the future threat posed by a defendant. In numerous instances, society’s decision to kill followed its own failure to heed warnings of a particular individual’s potential for violence and to ensure appropriate remedial assistance or care.

In an Appendix to this report, Amnesty International lists 100 of the men and women executed in the USA since the resumption of judicial killing there in 1977. Each of these individuals had suffered from some form of serious mental disorder other than mental retardation.(14) They represent one in 10 of the USA’s judicial death toll since that date. The list is illustrative only. Many others from among the remaining over 900 executed prisoners have raised mental health issues, either at trial or on appeal. However, it is not possible to know how many people who had serious mental impairments are on death row or have been executed. Defence lawyers may not have recognized that their clients had mental problems. Many inmates have not had thorough mental health examination because of lack of funds to allow such assessments.

The US Supreme Court halted executions in 1972, in Furman v. Georgia.(15) However, only two of the Justices found that the death penalty violated the US Constitution per se, in all cases violating the Eighth Amendment’s ban on "cruel and unusual punishments". The other three Justices who concurred in the judgment found only that it was unconstitutional in the arbitrary way in which it was being applied. Rather than lead their jurisdictions towards abolition, state legislators set about rewriting their capital statutes to take account of the Furmandecision. In Gregg v. Georgiaon 2 July 1976, having examined such statutes, the US Supreme Court accepted that the problem of arbitrariness could be fixed by a system under which the judge or jury would be provided "adequate information and guidance", preferably at a sentencing hearing separate from the guilt/innocence stage of the trial. It stated that the application of the punishment must be compatible "with the basic concept of human dignity at the core of the [Eighth] Amendment" and therefore must serve valid penological purposes, namely deterrence and retribution. It lifted the moratorium and executions resumed on 17 January 1977.(16)

The Eighth Amendment was added to the US Constitution in 1791. In 1910, the Supreme Court stated that the Amendment "is progressive and does not prohibit merely the cruel and unusual punishments known in 1689 and 1787, but may acquire wider meaning as public opinion becomes enlightened by humane justice".(17) The Court took up this theme half a century later when it said that the definition of "cruel and unusual punishments" was not permanently fixed, but instead must draw its meaning from "the evolving standards of decency that mark the progress of a maturing society".(18) The Greggdecision essentially took the view that the death penalty must be compatible with contemporary US values because of the number of states that had enacted new capital statutes after the Furmanruling.

Over the years since the Greggdecision, the Supreme Court has provided some constitutional protections for mentally impaired people facing the death penalty, although these protections have either come only recently, or have been somewhat limited in effect. In 1986, in Ford v Wainwright, the Supreme Court ruled that the execution of the insane violates the US Constitution’s Eighth Amendment ban on "cruel and unusual punishments". The Fordmajority noted that the Eighth Amendment’s prohibitions "are not limited to those practices condemned by the common law in 1789", but also recognize the "evolving standards of decency that mark the progress of a maturing society". It continued: "In addition to considering the barbarous methods generally outlawed in the 18th century, therefore, this Court takes into account objective evidence of contemporary values before determining whether a particular punishment comports with the fundamental human dignity that the Amendment protects".(19)

However, the Fordmajority neither defined competence for execution (although Justice Powell’s suggestion that the test should be whether the prisoner is aware of his or her impending execution and the reason for it has generally been adopted), nor did a majority mandate specific procedures that must be followed by the individual states to determine whether an inmate is legally insane. The result has been different standards in different states, judicial uncertainty, and minimal protection for seriously mentally ill inmates – as demonstrated by what happened to Thomas Provenzano.

Indeed, Thomas Provenzano’s experience was echoed a year later in Ohio. In mid-2001, a seriously mentally ill prisoner, Jay Scott, twice came minutes from execution – once, he had already had catheters inserted in his arms ready for the lethal injection when a court issued a stay. He was eventually put to death on 14 June 2001. Shortly before he was killed, he reportedly told relatives that he was "looking forward to the basketball game", apparently referring to a match to be played the following night. Protesting his colleagues’ refusal to stop the execution, Justice Paul Pfeifer of the state Supreme Court applied the "evolving standards of decency" theory to Ohio’s own constitutional ban on "cruel and unusual punishments":

"When the Constitution of the United States was ratified, slavery was legal and women could not vote. At various times in our country’s past, states tortured prisoners and performed barbaric executions, including flogging, castration, drowning, pressing, and sawing-in-half. Over the years, our society evolved… When Ohioans consider the countries that still practice slavery, we call them uncivilized; when Ohioans consider the countries that do not permit women to vote, we call them repressive; when Ohioans consider the countries that commit state-sponsored torture, we call them barbaric.

This court has a chance to take a step towards being a more civilized and humane society. This court could declare that in the interests of protecting human dignity, Section 9, Article I of the Ohio Constitution prohibits the execution of a convict with a severe mental illness. I believe that the ‘evolving standards of decency that mark the progress of’ Ohio call for such a judicial declaration.

Jay D. Scott is in no other way a sympathetic man. He is a twice-convicted murderer who does not appear to express remorse for his crimes. But I cannot get past one simple irrefutable fact: he has chronic, undifferentiated schizophrenia, a severe mental illness… Executing Jay D. Scott says more about our society than it says about him."(20)

The state killing of people such as Thomas Provenzano and Jay Scott indicate that the Fordruling is, at best, a minimal standard, and at worst a fig leaf for excusing one of the most indecent aspects of this cruel, inhuman and degrading punishment. In any event, the Forddecision never pretended to exempt those whose serious mental illness was found to fall short of a narrow definition of incompetence for execution. Two decades on, the time has surely come for judicial construction of a broader prohibition and greater protections for the seriously mentally ill in the capital justice process.

Justice Powell stated in his Fordconcurrence that "the only question raised" by Alvin Ford’s claim was "not whether, but when, his execution may take place", and noted that "if petitioner is cured of his disease, the State is free to execute him". A reminder of this came in 2003, when the US Court of Appeals for the Eighth Circuit ruled by a narrow majority that Arkansas officials could forcibly medicate mentally ill death row prisoner Charles Singleton even if that made him competent for execution. In October 2003, by refusing to take Singleton’s appeal against this ruling, the US Supreme Court allowed it to stand and the State of Arkansas to set an execution date. Charles Singleton was put to death on 6 January 2004.

A landmark decision in June 2002 finally outlawed the death penalty for people with mental retardation. In Atkins v. Virginia, the Supreme Court held by six votes to three that the execution of such offenders is an excessive sanction, violating the Eighth Amendment ban on "cruel and unusual punishments".(21) The Court reasoned that mental retardation diminishes personal culpability, and renders the death penalty in the case of this category of offenders difficult to justify on deterrence and retribution grounds. The Atkinsruling overturned a 1989 decision, Penry v. Lynaugh, by finding that "standards of decency" in the USA had evolved in the intervening years to the point at which a "national consensus" had emerged against such executions – primarily reflected in state-level legislation banning the execution of the mentally retarded. From an international human rights perspective, an encouraging footnote attached to the Atkinsopinion acknowledged that "within the world community, the imposition of the death penalty for crimes committed by mentally retarded offenders is overwhelmingly disapproved."

On 1 March 2005, the US Supreme Court removed another category of defendant from the reach of the death penalty, namely children. In Roper v. Simmons, a majority of five Justices to four brought the USA into compliance with "the overwhelming weight of international opinion against the juvenile death penalty".(22) The Court "affirmed the necessity of referring to the evolving standards of decency that mark the progress of a maturing society to determine which punishments are so disproportionate as to be cruel and unusual". In finding that the death penalty against offenders who were under 18 years old at the time of the crime was indeed excessive, the Ropermajority quoted the Atkinsdecision: "Capital punishment must be limited to those offenders who commit a narrow category of the most serious crimes and whose extreme culpability makes them the most deserving of execution".

The Atkinsand Roperdecisions cannot but leave a question mark over another category of offender, namely the mentally ill. If the diminished culpability associated with youth and mental retardation render the death penalty an excessive punishment when used against offenders from those categories, what about people suffering from serious mental disorder other than retardation, such as serious brain damage, at the time of the crime? Should they not also be ineligible for execution?

Justice Stevens, writing for the Supreme Court majority in Atkins, concluded that:

"Mentally retarded persons… have diminished capacities to understand and process information, to communicate, to abstract from mistakes and learn from experience, to engage in logical reasoning, to control impulses, and to understand the reactions of others. There is no evidence that they are more likely to engage in criminal conduct that others, but there is abundant evidence that they often act on impulse rather than pursuant to a premeditated plan…Their deficiencies do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability."

While mental retardation and mental illness are not the same, the analysis given in the Atkinsruling nevertheless could be applied to the latter. For example, a mentally ill person’s delusional beliefs may cause them to engage in illogical reasoning and to act on impulse. A former President of the American Psychiatric Association wrote following the Atkinsdecision that:

"… the mentally ill suffer from many of the same limitations that, in Justice Stevens’ words, ‘do not warrant an exemption from criminal sanctions, but they do diminish their personal culpability".(23)

Only a tiny percentage of murders in the USA result in execution. As the lawyer trying to defend Francis Zito from the death penalty in Maryland in 2002 argued, the death penalty is a punishment in the United States that is supposed to be reserved for the "worst of the worst" crimes and offenders. In a decision in 1980, for example, the US Supreme Court overturned a death sentence because the defendant’s murders had not shown "a consciousness materially more ‘depraved’ that that of any person guilty of murder".(24) The Atkinsdecision picked up on this and stated: "If the culpability of the average murderer is insufficient to justify the most extreme sanction available to the State, the lesser culpability of the mentally retarded offender surely does not merit that form of retribution."

Can someone with a serious mental impairment other than retardation at the time of the crime ever be said to possess the "extreme culpability" assumed by the death penalty? If society’s standards of decency have evolved to prohibit the state-sanctioned killing of child offenders and those with mental retardation, how can that same society still permit the likes of Ricky Ray Rector, Thomas Provenzano and Charles Singleton to be put to death?

Some judges in the USA have already recognized this fundamental inconsistency. In July 2003, for example, Judge Robert Henry on the US Court of Appeals for the 10th Circuit noted the Atkinsruling, and concluded that the imposition of the death penalty against Robert Bryan, a mentally ill Oklahoma death row inmate, "contributes nothing" to the goals of retribution and deterrence. Although Judge Henry was joined by three other judges on the court, it was not enough to stop Robert Bryan going to his execution in June 2004.(25) In similar vein in September 2002, Justice Robert Rucker of the Indiana Supreme Court dissented against the death sentence of Joseph Corcoran, an Indiana inmate suffering from mental illness including schizophrenia. Justice Rucker drew attention to the Atkinsdecision:

"I respectfully dissent because I do not believe a sentence of death is appropriate for a person suffering a severe mental illness. Recently the Supreme Court held that the executions of mentally retarded criminals are ‘cruel and unusual punishments’ prohibited by the Eighth Amendment of the United States Constitution. There has been no argument in this case that Corcoran is mentally retarded. However, the underlying rationale for prohibiting executions of the mentally retarded is just as compelling for prohibiting executions of the seriously mentally ill, namely evolving standards of decency".(26)

The United Nations Safeguards Guaranteeing Protection of the Rights of Those Facing the Death Penalty, adopted in 1984 and endorsed by consensus by the UN General Assembly, prohibit the execution of “persons who have become insane”. A resolution adopted in 1989 on the implementation of the Safeguards recommended that UN member states eliminate “the death penalty for persons suffering from mental retardation or extremely limited mental competence, whether at the stage of sentence or execution”. In recent years, the UN Commission on Human Rights has repeatedly adopted resolutions calling for an end to the use of the death penalty against anyone suffering from any form of mental disorder.

There are, of course, many judges in the USA who have not yet come to this view. For example, in upholding the death sentence against mentally ill inmate John Edward Weik on 3 September 2002, all five Justices on the South Carolina Supreme Court wrote: "while it violates the Eighth Amendment to impose a death sentence on a mentally retarded defendant, the imposition of such a sentence upon a mentally ill person is not disproportionate."(27) In November 2004, two federal judges upheld the death sentence of Indiana death row inmate Arthur Baird, noting that while the US Supreme Court had prohibited the execution of offenders with mental retardation in Atkins, "it has not yet ruled out the execution of persons who kill under an irresistible impulse" brought about by mental illness. The judges acknowledged that "as an original matter, we might think it inappropriate to sentence to death a man as seemingly insane as Baird at the time of the murders. But it is not our judgment to make".(28) Arthur Baird’s death sentence was commuted by Governor Mitch Daniels on 29 August 2005, just two days before Baird was due to be executed. While he based his decision on other factors involved in the case, Governor Daniels’ commutation order referred to court findings that Baird was suffering from mental illness at the time of the crime and noted: "it is difficult to find reasons not to agree" with the findings of an Indiana Supreme Court judge that Baird is "insane in the ordinary sense of the word."

On the question of young offenders, the Supreme Court majority in Roper v. Simmonswrote that "the overwhelming weight of international opinion against the juvenile death penalty rest[s] in large part on the understanding that the instability and emotional imbalance of young people may often be a factor in the crime". So, too, surely, in the case of people with mental illness. A month after the Atkinsruling, Justice James Zazzali of the New Jersey Supreme Court wrote in the case of death row inmate Leslie Ann Nelson, who according to both defence and prosecution psychiatric testimony is "a seriously disturbed and depressed person who has suffered from serious mental illness throughout her life":

fi357 "The State’s legitimate penological interests that purportedly are served by the death penalty are unconstitutionally diminished if the State executes such a mentally ill and psychologically disturbed person… Executions, our most extreme form of indignation, cannot be carried out on a defendant whose irrationalities were exacerbated at the time of her criminal acts to such an extent as to undermine our confidence that she is fully culpable. If capital punishment is constitutional, it must be reserved for those defendants whose capacities allow them to be fully culpable."(29)

While the US Supreme Court majority in Atkins v. Virginiahad given a nod to international standards, the majority in Roper v. Simmons gave an even firmer one: "It does not lessen fidelity to the Constitution or pride in its origins", they said, "to acknowledge that the express affirmation of certain fundamental rights by other nations and peoples underscores the centrality of those same rights within our heritage of freedom". Just as on the question of child offenders, in repeated resolutions in recent years the United Nations (UN) Commission on Human Rights has called on all countries to desist from using the death penalty against anyone suffering from a mental disorder.

The USA should also end the use of the death penalty against anyone. The death penalty per secontravenes evolving international standards of decency, with a clear and growing majority of countries not executing anyone, let alone the mentally ill. In 1998, an Illinois Supreme Court Justice wrote in dissent in the case of a (mentally impaired) death row prisoner:

"My colleagues turn aside defendant’s constitutional challenge with the observation that the American criminal justice system is one of the best in the world. The sentiment has a pleasant and reassuring tone, but it overlooks an important fact. The supposedly ‘inferior’ justice systems of other nations are abandoning capital punishment at an unprecedented rate."(30)

In the seven years since Justice Harrison’s dissent, over 20 more countries have abolished the death penalty, bringing to 121 the number of countries which have abandoned this punishment in law or practice.(31) In those same six years, the USA has executed more than 500 prisoners, dozens of whom had serious mental impairments.

Amnesty International opposes all executions, regardless of the nature of the crime, the characteristics of the offender, or the method used by the state to kill the prisoner. While this report is about people with mental illness facing the death penalty, their cases also illustrate the wider flaws of an outdated punishment. The state’s attempt to select the "worst of the worst" crimes and offenders out of the thousands of murders committed each year inevitably leads to inconsistencies and errors, inescapable flaws which are exacerbated by discrimination, prosecutorial misconduct and inadequate legal representation.

In the cases of offenders with claims of mental retardation or mental illness, their fellow human beings will in the end be called upon to make subjective life-or-death decisions about which of these defendants or inmates should be included in these categories and which should not. In the 1986 Ford v. Wainwrightdecision, four US Supreme Court Justices acknowledged that although "the stakes are high", the evidence of whether a prisoner is incompetent for execution "will always be imprecise". A fifth Justice added that "unlike issues of historical fact, the question of [a] petitioner’s sanity calls for a basically subjective judgment." In a recent decision, in April 2005, the US Court of Appeals for the Fourth Circuit reiterated this when it said "undoubtedly, determining whether a person is competent to be executed is not an exact science".(32) In other words, there will always be errors and inconsistencies on the margins. Arbitrariness in the application of the death penalty is abhorrent as well as unlawful. In the end, there is only one solution – abolition.

To oppose the death penalty is not to excuse or minimize the consequences of violent crime, whether it is committed by mentally impaired offenders or anyone else. If it were, then a majority of countries are currently apologists for violent crime, clearly a nonsensical suggestion. Instead, to end the death penalty is to recognize that it is a destructive, diversionary and divisive public policy that is not consistent with widely held values. It not only runs the risk of irrevocable error, it is also costly – to the public purse, as well as in social and psychological terms. It has not been shown to have a special deterrent effect. It tends to be applied discriminatorily on grounds of race and class. It denies the possibility of reconciliation and rehabilitation. It promotes simplistic responses to complex human problems, rather than pursuing explanations that could inform positive strategies. It prolongs the suffering of the murder victim’s family, and extends that suffering to the loved ones of the condemned prisoner. It diverts resources that could be better used to work against violent crime and assist those affected by it. It is a symptom of a culture of violence, not a solution to it. It is an affront to human dignity. It should be abolished.

"Our Government", wrote a US Supreme Court Justice in 1928, "is the potent, the omni-present teacher. For good of for ill, it teaches the whole of our people by its example".(33) By its use of the death penalty, in the end, the state is peddling what amounts to a delusional theory: namely that by killing a selection of those it convicts of murder, it can offer a constructive solution to violent crime. In reality, the state is taking to refined, calculated heights what it seeks to condemn – the deliberate taking of human life. As French writer Albert Camus asked, what is capital punishment but the most premeditated of murders, to which no criminal act, however calculated it may be, can be compared? For there to be equivalence, the death penalty would have to punish criminals who had warned their victims of the date at which they would be killed and who, from that moment onward, had been confined at the captor’s mercy for years. "Such a monster", Camus suggested, "is not encountered in private life."(34)

In 1972, US Supreme Court Justice William Brennan put it another way: "The calculated killing of a human being by the State involves, by its very nature, a denial of the executed person’s humanity… In comparison to all other punishments today, then, the deliberate extinguishment of human life by the State is uniquely degrading to human dignity."(35) In the 1995 decision outlawing the death penalty in South Africa, Justice Mahomed on that country’s highest court built on Justice Brennan’s conclusion: "It is not necessarily only the dignity of the person to be executed which is invaded. Very arguably the dignity of all of us, in a caring civilization, must be compromised, by the act of repeating, systematically and deliberately, albeit for a wholly different objective, what we find so repugnant in the conduct of the offender in the first place."(36)

For the USA to be pursuing this premeditated ritualistic killing in the 21st century against offenders suffering from serious mental illness is particularly offensive to widely held standards of decency.

Background information and scope of this report

The stark realities are that many death row inmates were afflicted with serious mental impairments before they committed their crimes and that many more develop such impairments during the excruciating interval between sentencing and execution.

US Supreme Court Justice, 24 June 1991(37)

From the outset of a capital case, the mental condition of the defendant may have a bearing on the case. For example, the defendant’s mental state at the time of the crime may be reflected in the plea he or she enters in the trial court, such as "not guilty by reason of insanity".

The modern legal definition of insanity derived from the 1843 English M’Naghtencase.(38) Under this rule, the defendant is "insane", and therefore absolved from criminal responsibility, if, as a result of mental impairment, he or she did not know at the time of the otherwise criminal act that the act was wrong. This defence was subsequently broadened in the USA to include a "volitional" clause, exonerating defendants from criminal responsibility if they lacked the capacity to control their conduct to the requirement of the law.

This relaxation of the insanity defence led to a backlash, particularly after the 1982 case of John Hinckley, who was sent to mental hospital after being found not guilty by reason of insanity for his attempted assassination of President Ronald Reagan. Several states and the federal government amended their insanity laws – such as by dropping the volitional criterion to make it a harder verdict to achieve – or even abolished the defence entirely. Indeed, the defence is successful in only a minority of cases. In 2002, a veteran California prosecutor suggested that "you can be crazy as a loon, but that does not mean you’re legally insane".(39) Contrary to what some prosecutors have hinted to jurors, a successful insanity plea does not mean release from detention, but involuntary commitment to a psychiatric facility.

National attention was drawn to the insanity defence in 2002 by the case of Andrea Yates, against whom Texas prosecutors were seeking a death sentence for drowning her five young children. There was compelling evidence that she had been suffering from severe mental illness, namely undiagnosed schizophrenia and post-partum depression. The jury rejected the insanity defence, however, a decision that was inconsistent with current scientific knowledge relating to post-partum psychosis.(40) Debate about the issue continued after another Texas jury in 2004 found Deanna Laney not guilty by reason of insanity for killing two of her children.

In the 1970s and 80s, some US states created a new verdict between "not guilty by reason of insanity" and "guilty", namely "guilty but mentally ill". In theory, defendants found guilty but mentally ill were supposed to be guaranteed mental health care during their incarceration. However this has largely proved illusory and the "guilty but mentally ill" verdict has been widely criticized. It appears to have been a legislative response aimed at assuaging public outrage following particular high-profile cases, rather than a more preventive and treatment approach to people with mental illness who commit serious crimes.(41)

Evidence relating to the mental health of the defendant may also be introduced in mitigation against a death sentence. In the USA, death penalty trials are split into two stages. First there is the guilt/innocence phase. If the defendant is found guilty of the capital charge, the trial will move into a sentencing phase. At this second stage of the trial, the defence can present any mitigating evidence in an attempt to persuade the jury to vote for life rather than death, while the prosecution will make the case for execution by presenting the "aggravating" factors relating to the crime and offender.

Aside from the defence plea and the mitigating evidence, the question of an individual’s mental "competence" may also be raised at any one of a number of points in the capital process, including:

o Competence to waive interrogation rights, e.g. the right to a lawyer or to remain silent

o Competence to stand trial

o Competence to waive their right to counsel and to act as their own lawyer

o Competence to plead guilty

o Competence to drop appeals against conviction and death sentence

o Competence to be executed

These issues will be illustrated with cases later in the report, showing that the procedures used to assess "competence" have frequently failed to protect people suffering from serious mental illness.

● Mental illnesses cannot be overcome through “will power” and are not related to a person’s “character” or intelligence. ● Mental disorders fall along a continuum of severity. The most serious and disabling conditions affect five to 10 million adults (2.6 – 5.4%) and three to five million children ages five to 17 (5 – 9%) in the USA. ● Without treatment the consequences of mental illness for the individual and society are staggering: unnecessary disability, unemployment, substance abuse, homelessness, inappropriate incarceration, suicide and wasted lives; The economic cost of untreated mental illness is more than 100 billion dollars each year in the United States. ● The best treatments for serious mental illnesses today are highly effective; between 70 and 90 percent of individuals have significant reduction of symptoms and improved quality of life with a combination of pharmacological and psychosocial treatments and supports; ● Stigma erodes confidence that mental disorders are real, treatable health conditions. We have allowed stigma and a now unwarranted sense of hopelessness to erect attitudinal, structural and financial barriers to effective treatment and recovery. From: About mental illness. www.nami.org

In the June 2002 Atkinsdecision prohibiting the execution of people with mental retardation, the US Supreme Court noted that "[n]ot all people who claim to be mentally retarded will be so impaired as to fall within the range of mentally retarded offenders about whom there is a national consensus". As in the Ford v. Wainwrightdecision in 1986 ruling that it is unconstitutional to execute prisoners who have become incompetent for execution, the Court left it up to the individual states to decide how to comply with the decision.(42) While the Fordruling – as will be shown below – has offered minimal protection for people with serious mental illness at the time of their execution and needs to be revisited by the Court as a matter of urgency, the extent of the protection provided by the Atkinsdecision remains to be seen.(43) This matter is beyond the scope of this current report.

Neither does this report attempt to answer the complex question of precisely which defendants should be exempt from the death penalty on the grounds of mental illness at the time of the crime. At the time of writing, US experts on mental health and law, led by a Task Force of the American Bar Association Section of Individual Rights and Responsibilities (ABA-IRR), were continuing to discuss this matter with the aim of achieving common agreement amongst legal and mental health professionals and advocates as to precisely what the term "mental illness" should mean when seeking to extend the "Atkins" protection to people with mental illness.(44) Obviously, mental illness can incorporate a wide range of conditions, some more serious than others. In addition, mental illness is not necessarily present all of the time in a sufferer, whether because of treatment or remission. Mental retardation on the other hand is a permanent developmental disability.(45)

Nevertheless, it may be helpful to the reader to have a brief description of the mental illnesses that are most frequently mentioned in this report. This information is adapted from that provided by NAMI, a grassroots advocacy organization in the USA (formerly known as the National Alliance for the Mentally Ill). This and further information can be accessed at www.nami.org. Information can also be accessed on the website of the National Institute of Mental Health, at www.nimh.nih.gov.

Schizophrenia. Schizophrenia is a serious brain disorder that affects approximately 2.2 million adults in the USA. It interferes with a person’s ability to think clearly, to distinguish reality from fantasy, to manage emotions, to make decisions and to relate to others. The first signs of schizophrenia typically emerge in the teenage years or early 20s. Most people with schizophrenia suffer chronically or episodically throughout their lives, and are often stigmatized by a lack of public understanding about the disease. A person with schizophrenia does not have a "split personality", and almost all people with schizophrenia are not dangerous or violent towards others when they are receiving treatment. The World Health Organization has identified schizophrenia as one of the 10 most debilitating diseases affecting humans. Symptoms of schizophrenia include hallucinations – hearing voices when no one has spoken or seeing things that are not there – and delusions such as believing that people are reading their mind, controlling their thoughts or plotting against them.

1. Bipolar disorder. Bipolar disorder, or manic depressive illness, is a serious brain disorder that causes extreme shifts in mood, energy, and functioning. It affects 2.3 million adults in the USA, and is characterized by episodes of mania and depression that can last from days to months. It can run in families. Bipolar disorder is a chronic and generally lifelong condition with recurring episodes that often begin in adolescence or early adulthood, and occasionally even in children. It generally requires lifelong treatment, and recovery between episodes is often poor.

2. Major depression. Major depression is a serious medical illness affecting nearly 10 million people in the USA in any given year. It causes lowering of mood, reduction of energy, and tiredness. Left untreated, depression may lead to suicide.

3. Schizoaffective disorder. This illness is characterized by a combination of symptoms of schizophrenia and an affective (mood) disorder. Today, most clinicians and researchers agree that it is primarily a form of schizophrenia. For a diagnosis of schizoaffective disorder, a person must have primary symptoms of schizophrenia (such as delusions, hallucinations or disorganized speech or behaviour) as well as prolonged symptoms of major depression or a manic episode.

4. Dissociative disorders. These are so called because they are marked by a loss of the normal integration between memories of the past, awareness of identity and immediate sensations, and control of bodily movements. There are many forms, the best known of which is dissociative identity disorder (formerly known as multiple personality disorder) where an individual has one or more distinct identities or personalities that surface on a recurring basis. All of the dissociative disorders are thought to stem from trauma experienced by the sufferer.

5. Post traumatic stress disorder (PTSD). PTSD is an anxiety disorder that can occur after someone experiences a traumatic event that caused intense fear, helplessness, or horror. The traumatic events can include war, childhood abuse, rape, natural disasters, accidents and captivity. Symptoms include re-experiencing (e.g. nightmares, flashbacks, hallucinations); avoidance (e.g. lack of recall of the traumatic event, limited range of emotion, feelings of detachment from others, feelings of hopelessness about the future); and increased arousal (e.g. inability to sleep, irritability, outbursts of anger, inability to concentrate, watchfulness, jumpiness).

6. Brain damage. Also of relevance to this report is the issue of serious brain damage that may be equivalent to mental retardation, but which would not be defined as such because it occurred not as a lifelong developmental disability, but as the result of an accident or other traumatic event.(46)

7. Organic brain syndrome (also known as organic mental disorder, chronic organic brain syndrome). Organic brain syndrome is a general term referring to physical disorders of the brain arising from disease or trauma that cause decreased mental function such as problems with attention, concentration and memory, confusion, anxiety and depression.(47)

There are currently around 3,400 people on death row in the USA. It is not known how many of them suffer from mental disorders of the sort listed above. The National Mental Health Association has estimated that five to 10 per cent of the US death row population have serious mental illness.(48) This would be consistent, for example, with a recent study which investigated 2,005 people convicted of homicide in Sweden over a 14-year period. The researchers believe that it is the largest study to date of mental disorders in homicide offenders. It found that one in five suffered from a psychotic illness. Specifically, 8.9 per cent of the individuals had been diagnosed with schizophrenia, 2.5 per cent with bipolar disorder, and 6.5 per cent with other psychotic disorders. The study pointed out that the homicide rate in Sweden was about three times lower than in the USA and suggested that "in countries with more liberal gun laws, the proportion of mentally disordered homicide offenders may be different". The study pointed out that earlier research in the United Kingdom and Finland had each found that six per cent of homicide offenders suffered from schizophrenia. (49)

In any event, the primary purpose of this report is to illustrate that people with serious mental illness continue to be sentenced to death and executed in the United States of America, that existing safeguards are clearly inadequate to prevent this from happening, and that there is a profound inconsistency in exempting people with mental retardation from the death penalty while those with serious mental illness remain exposed to it.

Amnesty International is an abolitionist organization which campaigns to end the death penalty in all cases everywhere. While pursuing this aim, which may take many decades in some countries, it also seeks to narrow the scope of capital punishment, in line with international standards, and to promote moratoriums on executions. Therefore, as it did previously on the issue of child offenders and those with mental retardation, Amnesty International will join with others seeking to protect people with mental illness from the death penalty in the USA. It recognizes that some individuals or organizations may support such an exemption from the less-than-abolitionist position that the death penalty is acceptable as long as it is more narrowly and reliably applied. Indeed, some may even see a narrower death penalty as easier to defend against the abolitionist tide. For its part, Amnesty International supports narrowing the scope of the death penalty insofar as it represents progress towards abolition. Thus, even while it supports such measures, the organization will continue to seek to persuade all proponents of the death penalty, whether they are politicians, prosecutors, or members of the public, to change their minds and drop their support for any judicial killing at all.

Reality check 1 – Existing protections are clearly not enough

He did a terrible thing, but he was sick. Where is the compassion? Is this the best our society can do?

Yvonne Panetti, mother of Scott Panetti, Texas death row inmate, 2003(50)

Pro-death penalty officials, whether they be prosecutors, legislators, governors or judges, may claim that existing safeguards in US federal and state law protect the seriously mentally impaired from execution. For example, in August 2000, the then Attorney General of Texas, the state which accounts for a third of all executions in the USA since 1977, claimed that the Texas justice system "offers no less than five separate procedural protections for capital murder defendants who may have any form of mental incapacity". He said the "five-layered system of safeguards ensur[ing] due process for all mentally impaired defendants" consists of the following protections:

8. No person may be put to trial unless he is mentally competent to understand the charges against him and to assist his attorneys at trial;

9. No person may be convicted of a crime unless the state proves beyond a reasonable doubt to the jury that the defendant intended to commit the criminal act;

10. It is a defense to prosecution for a crime if a defendant shows he was mentally unable to know that his conduct was wrong;

11. In the punishment phase of a capital murder case, a defendant may present to the jury any and all evidence of mental impairment in mitigation against a death sentence;

12. A death row inmate cannot actually be executed unless he is mentally competent, which means that he understands that he is going to be executed and the reasons why.(51)

Do the Attorney General’s assurances remain credible when set against the reality on the ground? A case in point is that of Scott Panetti, who was sentenced to death in Texas in 1995 for killing his parents-in-law in 1992. He has a long history of mental illness, including schizophrenia. He was hospitalized more than a dozen times in numerous facilities before the crime, which he claimed was committed under the control of an auditory hallucination. He also claimed that divine intervention had meant that his victims did not suffer, and that demons had been laughing at him as he left the scene of the crime.

In July 1994, a hearing to determine if he was competent to stand trial was declared a mistrial when a jury could not reach a verdict. Two months later a second hearing was held. His lawyer testified that in the previous two years, he had had no useful communication with Scott Panetti because of his delusional thinking. A psychiatrist for the defence concluded that Panetti was not competent to stand trial. A psychiatrist who testified for the prosecution agreed with the previous diagnoses of schizophrenia, and that Scott Panetti’s delusional thinking could interfere with his communications with his legal counsel, particularly under situations of stress as in a courtroom. However, he concluded that the defendant was competent to stand trial. The jury agreed.

Scott Panetti then waived his right to counsel, and the case went to trial in September 1995 with the defendant acting as his own lawyer. He pleaded not guilty by reason of insanity (at the time of the crime), a notoriously difficult plea on which to be successful, even for an experienced trial lawyer. Scott Panetti dressed as a cowboy during the proceedings, and gave a rambling presentation in his defence. Numerous people who attended the trial as witnesses have variously described the trial as a "farce", a "joke", a "circus", and a "mockery". In post-conviction affidavits they concluded, from their prior knowledge of Panetti and their observations of him during the proceedings, that he was incompetent to stand trial. For example, a doctor who had previously treated Scott Panetti for schizophrenia in 1986 concluded that Panetti was "acting out a role of an attorney as a facet of his mental illness, not a rational decision to represent himself". An attorney called by Scott Panetti as a witness later stated: "The courtroom had the atmosphere of a circus. The judge just seemed to let Scott run free with his irrational questions and courtroom antics."

Another lawyer, who was appointed as Panetti’s stand-by counsel, wrote in an affidavit: "This was not a case for the death penalty. Scott’s life history and long term mental problems made an excellent case for mitigating evidence. Scott did not present any mitigating evidence because he could not understand the proceeding". He recalled that "His trial was truly a judicial farce, and a mockery of self-representation. It should never have been allowed to happen." The lawyer said that he spoke to two jurors who "told me that Scott probably would not have received the death penalty if the case had been handled differently". Another lawyer spoke to two other jurors. They "said that if Scott had been represented by attorneys that he would not have received the death penalty". One of them said that the jurors had voted for death out of their fear of his irrational behaviour at the trial.

Another witness at the trial, a reporter familiar with courtroom procedures, has recalled: "I watched as Scott questioned some of the jurors. The jurors would look scared." One of the doctors who was at the trial has said: "In my opinion, Scott’s mental illness had an effect on the jury that was visible. It was obvious from the appearance of the jury that Scott antagonized them by his verbal rambling and antics. Scott was completely unaware of the effect of his words and actions. Members of the jury had hostile stares and looked at Scott in disbelief while he rambled and made no sense."

A psychiatrist who evaluated Scott Panetti in 1997 concluded that he suffers from schizoaffective disorder, a combination of schizophrenia and bipolar disorder. This expert added that Panetti’s decision to waive his own counsel was under the influence of persecutory delusions, and his ability to represent himself in court was substantially impaired by disturbances in his thought processes". The psychiatrist further concluded that Panetti had not been competent to stand trial.

However, the state successfully continued to defend the death sentence on appeal. In 2002, the US Court of Appeals for the Fifth Circuit wrote: "During trial, Panetti proceeded while dressed in a cowboy suit, gave the appearance of hallucinating, and carried on rambling dialogues. He did, however, formulate a trial strategy, improved his performance over time, and was able to effectively examine and cross-examine witnesses". In its subsequent brief to the US Supreme Court in 2003, the Texas Attorney General’s Office argued that "Panetti’s apparent inability to consult with his court appointed attorney was the result of his conscious choice not to cooperate rather than a by-product of his mental illness". On 1 December 2003, the Supreme Court announced that it was refusing to consider the case.

The state set a date for Scott Panetti’s execution of 5 February 2004. The Texas Board of Pardons and Paroles rejected clemency by 15 votes to one. Then, on the eve of the execution, a federal judge issued a stay of execution in order that Panetti’s competency for execution could be determined.

At state-level, two court-appointed mental health experts concluded that Scott Panetti knew that he was to be executed, and had the ability to understand why. The defence objected to their methods and conclusions and sought funds to do their own investigation and requested that the state court hold an evidentiary hearing. Their efforts were unsuccessful; on 26 May 2004, the state court concluded that Scott Panetti had "failed to show by a preponderance of the evidence that he is incompetent to be executed". His lawyers appealed to the federal District Court, which granted resources to the defence and ordered a hearing on the competency issue.

The hearing was held on 7 and 8 September 2004. The defence presented four mental health experts. The state presented the two experts appointed by the state court in the earlier proceedings, and two correctional staff from death row (who, in essence, testified that Panetti appeared to know that he is going to be executed, but they did not know if he understood why).

The defence experts, including a forensic psychologist who had worked for the Federal Bureau of Prisons for 20 years, testified that Scott Panetti suffers from either schizophrenia or schizoaffective disorder. They testified that Panetti knows that he is on death row, and that he is to be executed. However, they had also concluded that Panetti believes that the official reason for his execution is "a sham" and that the real reason is to stop him from preaching the gospel. Far from being grounded in reality, they said, Scott Panetti’s delusional and grandiose belief is that his execution is part of a conspiracy against him, involving "the forces of evil, demons, and devils". The experts testified that they did not believe that Scott Panetti was faking his illness, and also noted that his condition had worsened on death row because he had stopped taking his medication after he had a "revelation" in April 1995.

For the prosecution, the two state court-appointed experts testified that Panetti had refused to co-operate with their evaluation because they would not answer questions about their religious preferences, although they acknowledged that he had told them that he believed he was to be executed to stop him from preaching. The psychiatrist admitted that Scott Panetti had "serious psychological problems", but that simply because Panetti "is preoccupied with religion and may even, at some level, genuinely believe that he is being executed for preaching the gospel" did not "render him incapable of understanding why the authorities have ordered his execution". He and the other state expert said that Panetti was capable of understanding why he was going to be executed, but admitted that they did not know if he actually did understand.

On 29 September 2004, the federal judge ruled that because Scott Panetti "knows he has committed two murders, he knows he is to be executed, and he knows the reason the State has given for his execution is his commission of those murders, he is competent to be executed".(52) The defence appealed, and the federal judge, clearly of the opinion that the standard for competency for execution is a minimal standard and the law on the issue "less than clear", granted leave to appeal to the US Court of Appeals for the Fifth Circuit. In their opening brief, Scott Panetti’s lawyers wrote:

"Mr Panetti holds a Kafkaesque belief that the State of Texas, in league with demonic forces, wants to execute him to prevent him from preaching God’s word. His belief is genuine. His belief is not grounded in reality. His belief is the product of his delusions brought on by severe mental illness… Although he appears to have a factual awareness of the State’s professed reason for his impending execution, the nature of his mental illness causes him to misperceive the logical connection between his murder of his parents-in-law and his penalty of death. He does not have a rational understanding of the reason for his execution."(53)

At the time of writing, the case was still in the Fifth Circuit. Previous cases raised doubts that the outcome would be a just one.

Reality check 2 – Insane in most people’s books yet executed

[A]ll of his understanding about his legal situation was delusional: in his view, and he truly believed this, his only ‘offense’ was knowing the mafia’s secrets, and his punishment, which was death, was being exacted by the mafia to keep him from telling their secrets.

Former Chief Psychiatrist, Texas death row, on Harold Barnard(54)

The Texas Department of Criminal Justice records Harold Barnard’s final statement before being executed on 2 February 1994 as ending in "a couple of sentences garbled". What Harold Barnard was trying to say before the state killed him will never be known. Perhaps there was some reference to the "Japanese Duck Mafia", the people he had long believed were going to kill him. In any event, what is clear is that the system failed to heed overwhelming evidence that he was insane and stop his execution. It is staggering that, more than a decade later, the problem has still not been addressed. People as ill as Harold Barnard can be, and have been, executed in the USA.

Harold Barnard was sentenced to death in 1981 for the killing the previous year of 16-year-old Tuan Nguyen during the robbery of a convenience store in Galveston, Texas. At the sentencing his defence lawyers presented some evidence about his troubled childhood and the large amount of alcohol and drugs he had consumed shortly before the crime. The jury also heard that, several months before the murder, Harold Barnard had been beaten on the head with a tyre lever by his son-in-law. He had sustained severe head injuries which apparently went largely untreated. His mother testified how his personality and ability to function changed after this incident. For example, he had been a successful carpenter, roofer and construction worker prior to the injury, but was unable to work after it. However, the defence did not present any expert testimony relating to possible brain damage or psychological disorder, including incipient schizophrenia.(55)

On death row, Harold Barnard’s serious mental illness became more and more pronounced. By the time his execution date was set in early 1994, all the mental health professionals, including prison doctors, who had examined, diagnosed and treated him over the years were in agreement – he could not understand the reason for or reality of his execution, rendering his execution unlawful under Ford v. Wainwright. However, one doctor, after having conducted a brief interview with Barnard, testified that he was competent for execution. The fact that Harold Barnard was executed, in effect, on the opinion of a single doctor in the face of overwhelming expert opinion to the contrary speaks volumes of the state’s willingness to kill on the basis of unreliable evidence.

Five different prison doctors, all psychiatrists and psychologists employed by the Texas Department of Corrections (TDC), agreed that Harold Barnard was not competent to be executed. These were not doctors employed by the defence or the prosecution as part of the litigation on Harold Barnard’s case. They were experts who had observed, examined, evaluated and treated Barnard over the course of the previous decade that he had spent on death row. They had come to their respective decisions before the issue had been raised in the courts.

13. Dr Joseph Leggett, one of Harold Barnard’s former treating psychiatrists, testified that Barnard was "a severely mentally ill man with a fixed, deeply ingrained delusional system. He was very psychotic throughout the time I saw him as my patient. He also experienced auditory hallucinations. He was diagnosed as paranoid schizophrenic. Mr Barnard is not one of those people whose psychosis is periodic or cyclical, coming and going at times. Rather, he was always psychotic…The primary theme in his delusion, which remained constant throughout the time I treated Mr Barnard, was one of conspiracy: that the mafia and its agents were involved in an elaborate conspiratorial plot to have him put to death…because he knew all of their secrets, about the terrible things they were doing…. He had no appreciation or understanding that there was a connection between the crime for which he was convicted and his being on death row. This was because all of his understanding about his legal situation was delusional: in his view, and he truly believed this, his only ‘offense’ was knowing the mafia’s secrets, and his punishment, which was death, was being exacted by the mafia to keep him from telling their secrets… I have no doubt that Mr Barnard’s severe mental disorder is real, and that he is in no way malingering"(56)

14. Dr Yates Morgan, one of Harold Barnard’s former treating psychologists, testified that Barnard was "incapable of having a rational or cogent understanding or appreciation about his legal status or his reason for being on death row. Mr Barnard’s delusional thinking contaminated his entire understanding of the world around him… I cannot imagine that he could appreciate in any way the actual purpose of his punishment… For example, I remember Mr Barnard telling me that the oriental mafia was practicing germ warfare around the perimeter of his cell."(57)

15. Dr Santiago Caberto, who was one of Harold Barnard’s treating psychiatrists at TDC from 1982 to 1991, stated that during his treatment of Barnard, "he was psychotic as evidenced by his formal thought disorder with auditory hallucinations, paranoid delusional system and lack of insight and defective judgment. I firmly believe that he was not able to understand in a rational manner the reason for impending execution".(58)

16. Dr Howard Blevins evaluated Harold Barnard in 1987 on behalf of the Texas Attorney General’s Office. In that evaluation, Barnard had "launched into a rather confusing diatribe in which he mentioned the ‘Mafia’, ‘Japanese hit men’, ‘Three D Ducks’, ‘Italians’, and ‘Greeks’, in which he and his father ‘did not commit any crimes but fought them in self defense’… Mr Barnard reiterated that he had allowed his wife to hypnotize him and that she was able to ‘blank out my memory of the Mafia killings and the memory of hypnosis’." Dr Blevins concluded that Barnard was not legally insane at that time, but predicted that his condition was likely to deteriorate. By 1994, he believed that his prediction had come to pass: "In my professional opinion, the results of the [current] evaluations… appear to be consistent with the results, conclusions and prognosis I rendered in my evaluation of September 21, 1987. At that time I concluded that there was a distinct probability that he could become substantially dysfunctional in his cognitive and reasoning abilities."(59)

17. Dr Windel Dickerson, former chief psychologist for the TDC, concluded that Harold Barnard was incompetent for execution.(60)

In addition, Harold Barnard’s appeal lawyers hired other experts to assess their client on the question of his competency for execution. They, too, concluded that he was incompetent.

18. Dr Allen Childs, a psychiatrist, reviewed Barnard’s records, interviewed prison guards and inmates and examined Barnard. He concluded that: "Mr Barnard is profoundly psychotic, is unquestionably not feigning this psychosis and is likely to remain in this state of delusion indefinitely. He thoroughly believes the Mafia is behind his impending execution. Mr Barnard does not suspect this to be true, he knows it. His delusional system which dominates his thinking renders him incapable of any rational understanding why he is being put to death."(61)

19. Dr Philip Murphy, a clinical psychologist, reviewed Harold Barnard’s records, interviewed prison mental health personnel, guards and inmates and examined the prisoner himself. He concluded that "Mr Barnard is presently psychotic, due to a long-standing schizophrenic illness. This illness is marked especially by a bizarre delusional system whereby a plot by an ‘oriental’ arm of the Mafia was going to assassinate him… Mr Barnard believes, based on his delusional psychosis, that he is to be executed by members of the mafia (or ‘Japanese Duck Mafia’, or the ‘Cosa Nostra’, or the Gambino crime family, etc.) as a vendetta against him and his family".(62)

Harold Barnard denied that he had any mental illness. For example, he told Dr Childs that the prison personnel were "lying" when they related his bizarre behaviour such as rolling around in the exercise area "shouting at or batting away imaginary persecutors". Dr Childs also revealed that TDC records on Harold Barnard over the years variously diagnosed him as "schizophrenic", "psychotic", or "paranoia delusional". Dr Murphy also stated that the TDC records reflected Harold Barnard’s long-standing history of auditory hallucinations, most commonly of members of the mafia who were trying to have him killed. As early as 1985, a nurse in the Ellis 1 Unit noted that Harold Barnard "states that his food and medicine are poisoned. Wants to make the streets of Houston safe – children being stolen by the mafia – old women being raped by organized crime. Wants the federal marshals called in, so that he can explain what is going on – his life and his family’s lives are endangered by the mafia."

At an evidentiary hearing in state court in July 1993, a federal magistrate judge for the Western District of Texas, Austin Division, testified on Harold Barnard’s behalf. Prior to becoming a federal magistrate judge in 1992, Judge Alan D. Albright had been Harold Barnard’s former volunteer appellate lawyer. Judge Albright unequivocally stated that, in his opinion, Harold Barnard had no rational understanding of his legal situation. He stated that he and Barnard "did not have an attorney/client relationship that is anything – that is like anything that has been in my experience before. I wasn’t able to go to Harold to get any help on the case. I wasn’t able to explain to him why I was raising the defense I was raising… In fact, during our conversations when I was there [on death row], sometimes he would stop and basically ask me who I was and why I was there." A lawyer, who was involved in challenging Harold Barnard’s competency for execution, wrote to Amnesty International in June 2005:

"Harold did not believe the young victim he shot actually died. He believed with maniacal certainty that his impending execution was not punishment for his crime, but was simply another of many examples of the omnipresence and malevolence of the Japanese Ducks, controlling the courts, police, all authorities. Harold wrote his schizophrenic mother long letters almost every other day, telling her to buy a gun to protect herself from the Japanese Ducks, and that he would be out of prison and home soon to protect her. When Harold’s attorneys visited him, he frequently spent some time warning them personally to beware of the Ducks, out of what appeared to be a very genuine concern for their own families…

No one could have observed Harold in the courtroom for his execution competency hearing, with his pyjama-like prison outfit hanging off him and his shackles rattling due to his constant shaking, without perceiving that this gentle, anxious, diminutive man was, at the same time, utterly harmless and mentally destroyed".

With this extent of evidence, one would imagine that Harold Barnard would have been removed from the reach of the executioner. It was not to be. The state produced one doctor, Dr Edward Gripon, who concluded that Barnard, although mentally ill, was competent for execution. Dr Joseph Leggett, the TDC psychiatrist described Dr Gripon’s assessment as "a woefully inadequate determination of Harold Barnard’s present sanity. He appears to have made numerous diagnostic decisions based upon a very cursory and conclusory examination". Dr Leggett emphasised that "unlike Dr Gripon" he had observed Harold Barnard over a prolonged period and had personally conducted "thorough psychiatric examinations of Harold Barnard on many occasions, and I have had access to and have read Harold Barnard’s full medical history".(63) Dr Childs responded that "frankly, I am astonished at Dr Gripon’s conclusions. There are a number of factual inaccuracies in his evaluation which could not possibly be there had he reviewed all of the records as he says he did." Dr Murphy likewise criticized Dr Gripon’s conclusions. Yet another psychiatrist who treated Harold Barnard on death row also disagreed with the state’s expert, stating that "I am not clear how Dr Gripon came to such a vastly different conclusion", except that he "appears to have done only a cursory and superficial evaluation of Mr Barnard."(64)

Dr Gripon said that Barnard had explained to him "the circumstances of his conviction and the fact that he had been found guilty", that he was on "Death Row", and that he faced the process of lethal injection. However, Dr Gripon had apparently not asked Barnard why he was on death row or was to be executed. The fact that Barnard knew he was on death row and was going to be killed and that he had been convicted was not the point. The point was that he thought it was all part of a conspiracy by the mafia to assassinate him. Dr Leggett continued: "Though I do not hold any opinion about the ultimate correctness of the death penalty, I do firmly believe that no one should be executed on the basis of conclusions drawn from questions never asked, or from a critical line of inquiry inadequately pursued."

Not only did Dr Gripon’s report contradict all the other experts, he also contradicted himself on a number of issues during his live testimony at the evidentiary hearing in July 1993. For example, in his report, unlike every other doctor, Dr Gripon had denied that Harold Barnard experienced auditory hallucinations. In his testimony, he conceded that Barnard did experience hallucinations, thereby undermining his own conclusion that Barnard was not suffering from schizophrenia.

In September 1993, the state court recommended denial of relief. It took the position of Dr Gripon, finding that Harold Barnard knew that he was going to be executed by lethal injection and that he had been convicted of murder. It found that the defence had established only that "his perception of the reason for his conviction and pending execution is at times distorted by a delusional system in which he attributes anything that happens to him to a conspiracy…" The Texas Court of Criminal Appeals adopted the lower court’s findings. An execution date was set. The federal courts refused to stop the execution. The US Court of Appeals for the Fifth Circuit noted the defence’s assertion that seven experts had been ignored in favour of a single court-appointed witness, but held that "an unexpected outcome does not automatically render the state procedure unfair" and that "a state court’s finding of competency to be executed is entitled to a presumption of correctness".(65) Ten years later, in 2004, a federal judge would cite the Fifth Circuit’s decision in Harold Barnard’s case in ruling that Scott Panetti (above) was competent for execution – despite Panetti’s delusional belief that his execution was part of a conspiracy between the state and satanic forces to have him killed for preaching the gospel.

The Fifth Circuit Court of Appeals has recently and repeatedly come in for sharp criticism from the US Supreme Court for its findings in death penalty cases.(66) The Barnard case suggests that it should have stepped in much earlier. The Supreme Court should intervene at the earliest opportunity to prohibit the execution of inmates with serious mental illness.

Reality check 3 – ‘Guilty but mentally ill’ and sentenced to die

James Wilson could not control his own worst impulses. Sometimes our judicial system has the same problem.

Editorial, Georgia, 14 May 1989(67)

If doubts still remain that a person with serious mental illness can be condemned to death in the USA, the case of James Wilson should dispel them. While his case may be unique in the post-1977 era of judicial killing in the United States – a judge sentenced him to death despite finding that Wilson’s mental illness rendered him unable to control his conduct at the time of the crime – it demonstrates how a person with mental illness can end up on death row and how the appeal system may fail to remedy a manifest injustice.

On 26 September 1988, 19-year-old James William Wilson walked into the cafeteria of Oakland Elementary School in Greenwood, South Carolina, and opened fire with a gun he had earlier taken from his grandmother’s house and ammunition he had bought from a shop. When the .22 nine-shot revolver was empty, he reloaded, walked into a classroom down the hall and began shooting again. He ran out of ammunition for a second time and climbed out of a window. Outside, Wilson surrendered to the school’s head teacher who told him to put his hands up. He did so until the police arrived and took the teenager into custody. As a result of the shooting rampage, eight-year-old Shequila Bradley was dead and 10 other people - eight children and two teachers - had bullet wounds. A second eight-year-old girl, Tequila Thomas, died of her injuries three days later, having never regained consciousness. It was a crime, among the first of a number of school shootings that would occur across the USA over subsequent years, which traumatized the small city of Greenwood, and reverberated across the nation.(68) It was also to set a legal precedent in the state for the treatment of the mentally ill by the criminal justice system.

James Wilson comes from a family with a history of mental illness going back at least four generations and he himself began displaying mental problems from an early age, as well as becoming the target of emotional and physical abuse within his home environment.(69) By the age of 13, when he showed symptoms of mental illness, family members gave him prescription drugs meant for other relatives. He began to self-medicate with illicitly obtained medication, including sedatives, pain-killers, anti-depressants and anti-psychotic drugs. He was an inpatient in psychiatric hospital at least six times during his teens. However, the family failed to ensure that he attended follow-up appointments or other treatment programs. In April 1988, when he turned 19, his father’s health insurance ceased to cover him, and he was denied readmission to hospital. His mental condition deteriorated over the months leading up to the shooting. He was placed under psychiatric evaluation the day after his arrest. He was evaluated as suffering from borderline personality disorder. In its onset period, schizophrenia is commonly misdiagnosed as borderline personality disorder. James Wilson’s illness would indeed later be diagnosed as schizophrenia.

Recent research supported by the National Institute of Mental Health, an agency of the US Department of Health, has found that half of all lifetime case of mental illness begin by the age of 14, and that there are often long delays – sometimes decades – between the onset of symptoms and when the sufferers seek and obtain help.(70) A recent study of 18 young offenders on death row in Texas found that all but one came from extremely violent and/or abusive families in which mental illness was prevalent in multiple generations. Fifteen (83 per cent) of the inmates had signs and symptoms of early-onset mental illness in the bipolar, schizoaffective or hypomanic range of disorders.(71)

The prosecution decided to seek the death penalty against James Wilson for the murder of the two girls.(72) The defendant had a number of possible pleas, including not guilty by reason of insanity. Under the latter defence, if successful, he would have been found not criminally responsible if at the time of the crime he was unable to tell right from wrong. He would have been committed to secure confinement in a psychiatric hospital.

In the event, James Wilson pleaded "guilty but mentally ill" under a law enacted by the South Carolina legislature in 1984. Under this law, a defendant is guilty but mentally ill if, at the time of the crime, he or she could tell right from wrong but was unable to conform his or her conduct to the requirements of the law "because of mental disease or defect". The burden is on the defendant to prove this. After a three-day hearing at which he heard testimony from various experts, Circuit Judge James E. Moore determined that James Wilson’s mental state at the time of the crime met the statutory definition of "guilty but mentally ill". James Wilson’s plea was accepted and he became the 92nd person to be found guilty but mentally ill under the 1984 statute. Two weeks later, on 9 May 1989, James Wilson became the first of them to be sentenced to death.

The mental health professionals who had evaluated Wilson after the crime had considered the question of whether James Wilson was legally insane or guilty but mentally ill as "debatable" and "more than a close question". During the plea hearing, Dr Donald Morgan, then Associate Director of a division of the South Carolina Department of Health, who had been ordered by the court to evaluate James Wilson, testified that Wilson fitted the category of guilty but mentally ill. After his testimony, Dr Morgan stayed in the courtroom. During a break in proceedings, he informed one of the defence lawyers that he had altered his opinion having heard further testimony about Wilson’s behaviour at the time of the crime. Dr Morgan now believed that the defendant had been legally insane at the time of the offence. However, the lawyer neither told the defendant of this development nor requested a recess to consider the matter further.(73)

Perhaps the lawyer failed to inform James Wilson that there was now professional support for an insanity defence because the mentally ill teenager was showing signs of being incapable of assisting in his defence or deciding how to plead. It only emerged after the trial that he had told his lawyers that he was scared of being seen by a jury, suggesting that fear may have motivated his decision to waive trial by jury, enter a guilty plea, and face sentencing by a judge. Shortly before the plea, James Wilson had shaved off all his head and body hair, telling his attorneys that this was so that he could receive "special thoughts". For post-conviction proceedings, Dr Seymour L. Halleck, an eminent forensic psychiatrist who conducted an exhaustive review of the case, concluded that James Wilson was suffering from schizophrenia at the time, had not been competent to evaluate his legal options and make the guilty plea, and was probably not competent to stand trial at that time either.

His trial lawyers presented no mitigation evidence or witnesses at the sentencing. Nor did they present evidence that was available of James Wilson’s remorse about the shooting. Nor did they seek to explain that the powerful anti-psychotic medication their client was taking during his trial proceedings was causing him to appear unemotional and detached. His lawyers, experts and other observers variously described the defendant as having "a flat facial expression", "a very flat affect", or displaying a "disinterested", "totally flat", or "zombie-like" demeanour. James Wilson’s lack of visible emotion was even noted in the media reporting of the case.(74) The theme of the prosecutor’s argument for execution was that James Wilson, a mentally ill teenager from an abusive background, "chose to live the way that he did". The prosecutor argued that despite "a tendency today to put the blame on society, or to put the blame on circumstances, we can never as a civilized society abandon individual responsibility for actions". The judge agreed, despite finding four statutory mitigating factors in addition to his earlier finding that Wilson had not, due to mental impairment, been able to control his conduct at the time of the crime.(75)

There was widespread criticism of the judge’s decision, from lawyers, advocates for the mentally ill, and newspaper editorials. A few days after the sentence, for example, the South Carolina paper, The State, wrote, "[I]f Wilson were a cold-blooded killer in control of his mental faculties, we would applaud the death sentence. But is there any justice in electrocuting a young man who desperately needed help and did not get it, whose mind was so diseased that he could not resist his murderous impulses? We think not."(76) In neighbouring North Carolina, The Charlotte Observerposed a similar question: "Why impose on this pathetic man the maximum penalty a sane, calculating murderer would get? ...A humane society does not compound its fear and ignorance of mental illness by treating the mentally ill as common criminals. That’s what South Carolina has done in the case of James William Wilson."(77) In similar vein, the Atlanta Journal-Constitution in Georgia said:

"While Wilson’s crime was inarguably ghastly, his disordered mental state makes his rampage more a hideous tragedy than unmitigated outrage. What purpose would his execution serve? At best, Wilson’s execution would be no more than a hopeless gesture of protest against a crime that defies understanding. At worst, it would be an act of unspeakable meanness. James Wilson could not control his own worst impulses. Sometimes our judicial system has the same problem."(78)

At a post-conviction hearing, one of James Wilson’s trial lawyers testified that he and his co-counsel had "felt confident that [the judge] would decide that [Wilson] shouldn’t receive the death penalty" because of the defendant’s mental illness.(79) The lawyer testified to their belief that even if their client was sentenced to death, the acceptance of the plea of guilty but mentally ill "would have some power on appeal" which would lead to the death sentence being overturned. The other trial lawyer testified that he had believed that the court’s acceptance of the plea meant that "Wilson would not get the death penalty or if he did, it would never be upheld [on appeal]." The two lawyers were wrong. The death sentence has survived the appeals process intact.

On 6 January 1992, James Wilson’s case set a legal precedent in South Carolina when the state Supreme Court confirmed the death sentence. The court ruled that it was not unconstitutional to execute a person found guilty but mentally ill for actions over which, due to that illness, they had no control. It further ruled that the execution of such a defendant does not violate the constitutional ban on cruel and unusual punishment.(80) In a dissenting opinion, Justice Finney wrote:

"When considered in light of [Wilson’s] personal culpability, it becomes obvious that the penalty of death in this case is excessive; both in an absolute sense and when compared with other death sentences confirmed by this Court. This may be the only instance in South Carolina and indeed, according to my research, in the entire nation where the death penalty has been imposed after a factual determination that mental illness deprived the offender of sufficient capacity to conform his conduct to the standard required by law.... I would find that under these circumstances, a death sentence amounts to cruel and unusual punishment in violation of the eighth amendment."

The case went to the federal courts. In January 2003, a federal judge on the District Court for the District of South Carolina overturned the death sentence, finding various constitutional errors in the guilty plea proceedings and the sentencing hearing. The state appealed to the US Court of Appeals for the Fourth Circuit to overturn the District Judge’s ruling. The defence also appealed, arguing that to impose a death sentence on someone who was unable to conform his conduct to the requirements of the law violates the US Constitution.

On 17 December 2003, the Fourth Circuit Court of Appeals vacated the District Court’s ruling, applying the substantial deference that federal courts must apply to state court rulings in the USA.(81) It rejected the defence lawyer’s claim that there was a national consensus against such executions (see Waiting for the Evolution, below). In June 2004, the US Supreme Court refused to take the case. The following month the South Carolina Supreme Court ordered a hearing into the question of whether James Wilson is competent to be executed. At the time of writing, that hearing was still pending.

James Wilson remains on death row. His schizophrenia has become more pronounced over the years. Due to the lack of stimulation and lack of treatment, he has become more withdrawn and isolated. He rarely leaves his cell and has difficulty carrying on even rudimentary conversation. He has gone through periods where he refuses to wash; prison guards have sometimes dressed him in nothing but plastic rubbish sacks because he defecates and urinates in his clothes; he has lost all but one of his teeth because he let them rot.

Regardless of whether James Wilson meets the (minimal) standard of competency to be executed under Ford v. Wainwright, Amnesty International believes that his execution would violate the international prohibition on the arbitrary deprivation of life. The Atkins v. Virginiaruling in 2002 found that the execution of people with mental retardation was unconstitutional on the grounds that their impairments, while "not warrant[ing] an exemption from criminal sanctions… diminish their personal culpability" and render execution an excessive punishment. While no claim has been made that James Wilson has mental retardation, it is an "unreviewable fact" that James Wilson is facing execution for a crime over which he "was unable to control his behaviour".(82) In other words his personal culpability was diminished as a result of his mental illness.

Arbitrariness, whether in relation to the deprivation of liberty or of life, violates international law, including the International Covenant on Civil and Political Rights (ICCPR), which the USA ratified in 1992.(83) The Human Rights Committee, the expert body established by the ICCPR to oversee its implementation, has stated, regarding the right to liberty, that "arbitrariness" is not to be equated simply with "against the law", but should be interpreted more broadly to include elements of inappropriateness, injustice and lack of predictability.(84)

The fact that James Wilson is facing execution, while a person with mental retardation will not, is neither appropriate, nor just, nor consistent. His execution would be arbitrary.(85)

Reality check 4 – Finality at the expense of fairness?

A legal system is based on rules; it also seeks justice in the individual case. Sometimes these ends conflict.

US Supreme Court Justice, June 2005(86)

At a hearing in Arizona on 9 June 1999, all three mental health experts who had examined, observed and interviewed death row inmate Michael Poland said that his mental illness – a delusional disorder that made him believe that he had superhuman powers that would keep death at bay – rendered him incompetent for execution. This included the psychiatrist chosen and appointed at the state’s request, who testified that the prisoner’s "full psychological awareness is that he’s not to be executed". However, the state Attorney General argued that it was time for Michael Poland to "pay the price that he deserves for killing these two men twenty-one years ago".(87) The state got its way, and Michael Poland was put to death a week later.

Punishments do not come more final or irreversible than the death penalty. An error discovered after execution cannot be rectified. An inequity revealed post-mortemcannot be redressed. If this were the only reason to abolish the death penalty, it would be reason enough. This is a punishment that denies the possibility of human error. Yet no system can eradicate error and the inevitability of inconsistency in sentencing outcomes. This is as true in cases involving defendants with mental illness as with any other. Perhaps more so, given that our knowledge of the ailments of the human mind remains an inexact science, and people with mental impairments are generally less able to assist in their defence than others.(88)

From the executing state’s perspective, however, the death penalty brings with it an interest in achieving "finality". Once the state obtains a death sentence, finality becomes the aim rather than the problem. State prosecutors urge judges to reject appeals. Legislators respond to what they perceive as unnecessarily long or "frivolous" appeals with laws aimed at speeding up the process of getting the condemned inmate to the execution chamber. Judges elected or appointed in part in the belief that they will not oppose the death penalty may also adopt a conservative position on motions and appeals brought on behalf of condemned prisoners challenging aspects of the capital process. In a federated system of government, it may be that "states’ rights" demand deference for state court rulings by the federal judiciary.

This has been the case in the USA. Since 1977, for example, the US Supreme Court has handed down rulings creating strict rules of procedural default (whereby an issue is lost for appeal if it was not raised in the lower courts); raising the hurdle over which condemned inmates must step to win evidentiary hearings; limiting the retroactivity of constitutional decisions; facilitating state claims that a constitutional violation amounted to "harmless error"; and erecting barriers to the filing of successive petitions.(89) In 1995, Congress eliminated federal funding for post-conviction defender organizations which had provided lawyers for indigent death row inmates for their appeals and had a high success rate in uncovering violations. Then, in 1996, President Bill Clinton signed the Anti-Terrorism and Effective Death Penalty Act (AEDPA) into law. "From now on", he said at the signing, "criminals sentenced to death for their vicious crimes will no longer be able to use endless appeals to delay their sentences."(90) The Act placed new, unprecedented restrictions on prisoners raising claims of constitutional violations. It imposed severe time limits on the raising of constitutional claims, restricted the federal courts’ ability to review state court decisions, placed limits on federal courts granting and conducting evidentiary hearings, and prohibited "successive" appeals except in very narrow circumstances.

The cases of Horace Kelly, Ronnie Conner and Gregory Thompson – each of whom has been diagnosed as suffering from serious mental illness, including schizophrenia – illustrate how the state’s pursuit of finality can run into conflict with fairness – and how execution threatens to cement injustice into such cases.

In the years since being sent to death row in California in 1986, prison doctors have described Horace Kelly as "psychotic", "gravely disabled" and suffering from chronic schizophrenia. In 1995, a court-appointed psychiatrist found that Kelly was "suffering from a psychotic mental disorder of such severity that it precludes his capacity to appreciate his current legal position and make rational choices". In September 1997, a three-judge panel of the US Court of Appeals for the Ninth Circuit ruled that Horace Kelly had lost the right to federal judicial review because he had missed the one-year deadline, imposed by the AEDPA, for filing federal appeals after a state death sentence becomes final. "The Act will not have been very effective at all", the panel majority said, if it failed to stop delays in cases such as Kelly’s, which it described as a "saga" and an attempt at "semipiternal [everlasting] delay". The decision overturned a District Court decision that the AEDPA did not apply to the case. One of the three Ninth Circuit judges, Judge Wallace Tashima, dissented against what he called a "Draconian result – precluding Kelly from ever filing a first federal petition", pointing out that much of the delay had been caused by the District Court’s "attempts to grapple with Kelly’s mental problems", including the question of the prisoner’s competence to proceed with appeals.(91)

The Ninth Circuit agreed to rehear the case in front of 11 judges who, at a hearing in July 1998, were urged by California’s Deputy Attorney General to dismiss the appeal on the grounds that "this case is about finality."(92) The state’s appeal was rejected by the full court, who decided that the AEDPA did not apply to the case. This time, Judge Tashima wrote the majority opinion, stating that "it would be inappropriate for us to prevent [federal judicial review] merely to accommodate the state’s desire for a quick execution".(93) Given that a jury had earlier found Kelly competent for execution despite compelling evidence that he was insane (see below), if the original Ninth Circuit panel decision that the AEDPA governed had been allowed to stand, Horace Kelly would have been put to death. As it is, he remains on death row, hopefully providing an opportunity for an appropriate outcome to prevail.

In November 2002, the US Court of Appeals for the Fifth Circuit noted that the AEDPA did control the appeal filed on behalf of Ronnie Conner, a death row inmate in Mississippi. Conner had first been diagnosed with schizophrenia in the 1980s. He was sentenced to death in 1990 for the murder in January of that year of an elderly woman who was abducted and died after having her throat slit. At the capital trial, Ronnie Conner’s lawyer did "nothing whatsoever" to prepare for the sentencing phase of the trial, despite knowing of his client’s mental illness and despite this evidence being "readily available".(94) After the jury voted to convict Ronnie Conner, the lawyer "frantically" tried to locate a doctor or other expert witness to testify at the sentencing stage which was due to begin the next day. He failed to find anyone, and instead put the defendant’s sister on the stand, much of whose testimony was excluded as hearsay. She said that her brother had been treated for mental illness for about a decade and that she thought that he sometimes did not take his medication. Conner himself gave contradictory testimony on whether or not he had taken his medication on the day of the crime. The Fifth Circuit conceded that the mental health evidence presented in mitigation was "skeletal" and "presented to the jury in an abbreviated form with no elaboration".

Under the 1984 US Supreme Court decision Strickland v. Washington, to win an appeal on the grounds of inadequate legal representation at trial, a condemned inmate must show not only that the trial lawyer’s performance was deficient, but also that this deficiency had altered the outcome of the trial. The appeal courts are required to be "highly deferential" to a defence lawyer’s performance, "indulge a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance", and avoid "the distorting effects of hindsight".(95) The AEDPA made a successful claim on this issue even harder to achieve. It prohibits a federal court from granting relief unless the state appeal court’s decision in the case "was contrary to, or involved an unreasonable application of, clearly established Federal law, as determined by the Supreme Court of the United States".

On appeal, a number of experts signed affidavits relating to the question of Ronnie Conner’s mental health. A doctor who had treated Conner in the two years before the crime, for example, said that he could have told the jury about Conner’s schizophrenia, that its symptoms included auditory hallucinations, that Conner had once jumped from a moving train as a result of voices telling him to, that he did not always take his medication, and that he had impaired control over his conduct because of his mental illness. A social worker testified that she would have told the jury that Conner was in all likelihood off his medication at the time of the crime. A psychiatrist signed an affidavit that, in his opinion, Conner was mentally ill at the time of the crime and unable to control his conduct to the requirements of the law.

Nevertheless, applying the Stricklandtest, the Mississippi Supreme Court decided that although the trial lawyer’s performance had been deficient, it had not altered the trial’s outcome.(96) The US Court of Appeals for the Fifth Circuit agreed. The trial lawyer’s performance had been deficient – he "had an obligation at least to investigate and perhaps present this potentially mitigating evidence because it could reasonably have been expected to augment [Conner’s] case", it said, but added that "deficiency is not enough". The federal court noted that it was bound by the AEDPA, and ruled that the Mississippi Supreme Court’s finding had not "unreasonably" applied the Strickland test, in fact had "faithfully" applied it despite acknowledging that "it might be tempting to argue that Conner was prejudiced by his attorney’s lack of foresight."(97)

At the time of writing, Ronnie Conner remained on death row. In 2002, his lawyers informed Amnesty International that he would often refuse to come out of his cell, convinced of a conspiracy against him and that any conversation would be bugged. He frequently refused to take his medication because of his paranoia.(98) In 2003, a federal judge described the mental health care on Mississippi’s death row as "grossly inadequate" (see below).

Gregory Thompson, who has been diagnosed as suffering from schizophrenia, has been on Tennessee’s death row for two decades. In June 2005, the US Supreme Court was split on his case. Four Justices suggested that Thompson’s execution would amount to "a serious miscarriage of justice". The five others, citing the state’s interest in "finality", gave the State of Tennessee the green light to put Thompson to death for the murder of Brenda Lane 20 years earlier.(99)

Arrested the day after the 1 January 1985 murder, Gregory Thompson had quickly confessed to the crime and helped police to find Brenda Lane’s body. Prior to the trial, his lawyers asked for funds so that they could hire a psychiatrist to examine Thompson. Their request was granted by the trial court. However, they did not hire a psychiatrist, but rather an industrial psychologist. At Thompson’s subsequent trial the defence submitted no evidence at the guilt/innocence stage and he was convicted of first degree murder. At the sentencing phase, the defence psychologist testified that he did not think that Thompson had any serious mental illness, but that he was very remorseful. The prosecution presented a psychologist, who testified that Thompson was not mentally ill, and in fact had shown signs of faking mental illness. The jury sentenced Gregory Thompson to death.

For state post-conviction proceedings in 1991 and 1992, Gregory Thompson’s appeal lawyers sought funding for further mental health evaluations. They submitted testimony from a psychologist who stated that a review of Thompson’s prison records revealed that he had been variously diagnosed with bipolar disorder, schizoaffective disorder and paranoid schizophrenia, that he had displayed symptoms such as hallucinations, delusions, paranoia, suicide attempts, that he was considered not to be malingering, and that he had been prescribed anti-psychotic medication. She stated that a full evaluation was needed to establish if it was likely that such impairment had existed at the time of the crime. The request for funds was denied, as was the claim that Thompson had been denied adequate legal representation at his trial. The state courts affirmed the death sentence and the case moved into the federal courts.

In January 2003, a three-judge panel of the US Court of Appeals for the Sixth Circuit ruled by two votes to one against Thompson. Applying the AEDPA, Judge Suhrheinrich deferred to the state courts and said that under the limitations imposed by the AEDPA on inmates obtaining evidentiary hearings in federal court, the US District Court had not erred in dismissing his petition in 2000 without holding such a hearing. Judge Moore concurred in the result. Judge Clay dissented, saying that the performance of the trial lawyers had been "well below an objective standard of reasonableness" in failing to hire an experienced psychiatrist rather than an industrial psychologist with no experience in capital cases to assist on the mental health question. Even under the stringent requirements of the AEDPA, he said, the death sentence should not stand. Judge Clay concluded that it was likely that a thorough psychiatric evaluation would have revealed evidence of Thompson’s mental illness and could have been used to portray a "far more sympathetic figure" to the jury, with the reasonably probable outcome that the jurors would not have voted for the death penalty. Judge Clay may well have been right. As will be shown later in this report, in many cases jurors left unaware of a defendant’s mental impairment at the trial have later signed affidavits indicating that they would have voted for life if such evidence had been presented.

The Sixth Circuit’s rejection of Gregory Thompson’s appeal was not its final word on the matter, however. On 23 June 2004, after the US Supreme Court had said that it would not review the case and the state had set an execution date, the three judges on the Sixth Circuit issued a new opinion, reversing their January 2003 ruling. A medical report by a forensic psychologist retained by Thompson’s federal appeal lawyers had come to Judge Suhrheinrich’s attention – for some reason it had been missing from the documents filed in the original appeal. The psychologist, Dr Faye Sultan, had investigated Thompson’s "horrendous childhood, his family history of mental illness his self-destructive schizophrenic behaviour (including auditory hallucinations) as a child, his mood swings and bizarre behaviour as a young adult, and a worsening of that behaviour after a serious beating to the head that he suffered while in the Navy."(100) She concluded that Thompson had already suffered from episodes of schizophrenia at the time of the crime. This, the Sixth Circuit said, "was extremely probative testimony" which demanded the evidentiary hearing denied by the District Court in 2000. It also issued a stay of execution.

The state appealed, and on 27 June 2005, the US Supreme Court, by five votes to four, reversed the Sixth Circuit’s ruling. It found that the Sixth Circuit panel had abused its discretion in the way it had revisited Thompson’s case. The majority wrote:

"a dedicated judge discovered what he believed to have been an error, and we are respectful of the Court of Appeals’ willingness to correct a decision that it perceived to have been mistaken. A court’s discretion… must be exercised, however, in a way that is consistent with the State’s interest in the finality of convictions that have survived direct review within the state court system. Tennessee expended considerable time and resources in seeking to enforce a capital sentence rendered 20 years ago, a sentence that reflects the judgment of the citizens of Tennessee that Thompson’s crimes merit the ultimate punishment…[T]he Court of Appeals did not accord the appropriate level of respect to that judgment".(101)

Writing for the four Justices in the minority, Justice Breyer said:

"I believe we should encourage, rather than discourage, an appellate panel, when it learns that it has made a serious mistake, to take advantage of an opportunity to correct it, rather than ignore the problem… When we tell the Court of Appeals that it cannot exercise its discretion to correct the serious error it discovered here, we tell courts they are not to act to cure serious injustice in similar cases. The consequence is to divorce the rule-based result from the just result. The American judicial system has long sought to avoid that divorce. Today’s decision takes an unfortunate step in the wrong direction".

Gregory Thompson was scheduled to be executed on 7 February 2006, despite the fact that seven of the last 12 judges to review his case had concluded that he should have been granted relief. Indeed, Thompson’s prison file contains over 4,000 pages documenting his serious mental illness. On 5 January 2006, the execution was stayed by the US District Court for the Eastern District of Tennessee in order for it to consider whether Thompson is competent to be executed. In the name of fairness and decency, the state should use the opportunity afforded by this stay to abandon its bid for lethal finality.

Waiting for the evolution: state law as a measure of ‘decency’

We have pinpointed that the clearest and most reliable objective evidence of contemporary values is the legislation enacted by the country’s legislatures.

US Supreme Court, Atkins v. Virginia, June 2002

In both the Roper v. Simmonsand Atkins v. Virginiarulings, outlawing the execution of child offenders and people with mental retardation respectively, the US Supreme Court used as its principle measure of "evolving standards of decency" state-level legislation on the two issues. Writing the Roperdecision, Justice Kennedy noted that the tallies were the same on both issues – 30 states prohibited the execution of each category of offender, including the 12 states which were abolitionist all together. Because of the nature of the juvenile and mental retardation issues – for which definitions are relatively straightforward – it was easy for the Supreme Court to tally which states had prohibited the death penalty in each category. It is not so easy to make a similar assessment on the question of mental illness. Amnesty International understands that only one of the death penalty states in the USA, Connecticut, currently prohibits the execution of a person on the grounds of mental illness at the time of the crime.(102)

Although Amnesty International recognizes that the US Supreme Court uses this tallying method to assess whether a national consensus has emerged – indeed the organization argued that this method mandated the prohibition of the juvenile death penalty following the Atkinsruling(103) – the organization considers it a questionable method by which to decide an issue of basic human rights. History shows that countries which have turned their backs on the death penalty, or any particular aspect of it, have done so as the result of principled leadership rather than following some measure of popular opinion. "Democracy" should surely not be used to justify a measure which "is uniquely degrading to human dignity".(104) The USA claims to be founded upon and committed to human dignity. Fundamental human rights are to be promoted and respected now, not put aside for some unspecified day in the future.

Certainly the Supreme Court’s technique of measuring a national consensus by state legislative activity is hugely slow – the Roper ruling, for example, came 30 yearsafter entry into force of the International Covenant on Civil and Political Rights, one of the treaties banning the execution of child offenders. There was a wait of more than a decade between the United Nations adopting a resolution urging member states to eliminate the death penalty "for persons suffering from mental retardation", and the Atkinsdecision in June 2002.(105) A country’s claims to be a progressive force for human rights are drained of meaning when it lags so far behind on this fundamental human rights issue. In an increasingly abolitionist world, the USA’s credibility when criticising other country’s human rights violations will be increasingly undermined by its resort to judicial killing. The credibility gap will be even greater when it is offenders with serious mental illness who are being killed by the state.

In the Roperand Atkinsdecisions, having found that state legislation pointed to a national consensus against executing child offenders and those with mental retardation, the US Supreme Court conducted its own independent analysis and found no reason to disagree with those states that had legislated to that effect. On the question of the mentally ill, Amnesty International would hope that the Supreme Court could reverse this procedure, so that "in the end [its] own judgment will be brought to bear on the question of the acceptability of the death penalty under the Eighth Amendment".(106) It should apply its independent analysis to the question of the execution of people with serious mental illness, and recognize that such executions achieve nothing, just as the execution of minors and people with mental retardation cannot fulfil the would-be goals of the death penalty. In Supreme Court parlance, executions which fail "measurably" to contribute to the goals of retribution or deterrence are "nothing more than the purposeless and needless imposition of pain and suffering".(107) The execution of the seriously mentally ill surely falls into this category.

Regardless of whether the Supreme Court finds that some measure of legislative activity reveals a "national consensus" against executing the mentally ill, it should surely not insult the population of the USA by suggesting that, when fully informed, their standards of decency have not evolved to the point of opposing such executions.(108) This time, the Court should take the lead and, at the earliest opportunity, give a clear signal to the individual states that the execution of people with serious mental illness will no longer be tolerated. The message should be clear: either state legislators prohibit the execution of offenders with serious mental illness or their prosecuting authorities will face reversal of death sentences against such offenders in the courts.

Amnesty International considers it unlikely that the US Supreme Court will in the near future accept the argument that a national consensus against the execution of people with serious mental illness is already reflected in state laws. However, of relevance to such an argument might include the fact that:

20. 12 US states are abolitionist, and a 13th, New York, has a de facto moratorium on the death penalty in place after its capital statute was found unconstitutional by the state’s highest court and has not been reinstated. These states are not using the death penalty against anyone, let alone people with mental illness. (109)

21. 25 of the 37 death penalty states, as well as the federal government, have as statutory mitigating factors for consideration by capital juries at sentencing either (1) the defendant’s capacity to appreciate the wrongfulness of his or her conduct or to conform that conduct to the requirements of the law was impaired; or (2) the defendant was acting under extreme mental or emotional disturbance.(110)

22. In at least five states – Arizona, Florida, Mississippi, Ohio and Nevada – a number of inmates suffering from mental illness have been removed from death row under proportionality review.(111)

23. Of the death penalty states which allow defendants to plead "guilty but mentally ill" (GBMI), only four have passed death sentences in GBMI cases.(112) Only one such defendant is believed to remain on death row – James Wilson in South Carolina (see Reality Check 3, above).

The difficulty faced by those arguing that even a case as clearly unjust as James Wilson’s is unconstitutional is shown by the response of the appeal courts. Ruling on Wilson’s case in December 2003, the US Court of Appeals for the Fourth Circuit considered the question of the constitutionality of executing a person who had been found by the trial court to have "lack[ed] sufficient capacity to conform his conduct to the requirements of the law". The Fourth Circuit deferred to the South Carolina Supreme Court’s rejection of this claim. The state court had concluded that it was "unconvinced that Wilson has proven a national consensus exists against the imposition of the death penalty" upon defendants who had suffered from an "irresistible impulse" rather than those who lacked all reason and inability to distinguish right from wrong.

James Wilson’s appeal lawyers had presented the Fourth Circuit with evidence of a national consensus against executing individuals who lacked the capacity to conform their conduct to the law. They argued that in 17 states, 10 of which have the death penalty, the acceptance by the trial court of the equivalent level of volitional capacity as had been found by Wilson’s trial judge, would have protected the defendant from all criminal responsibility and any punishment.(113) In addition, in two other death penalty states(114), an equivalent defendant would not have been eligible for the death penalty. In other states the question remains unclear. In any event, South Carolina is the only state whose law defines a GBMI defendant as someone who was unable to control his or her conduct due to mental illness andwhich has also decided that such a defendant can be eligible for the death penalty.

However, the Fourth Circuit rejected this argument, holding that "the fact that nineteen states would not have allowed Wilson to receive the death penalty does not, standing alone, establish a national consensus against the execution of individuals like Wilson. At best it demonstrates that the number of states where the execution of such individuals was not possible roughly equalled the number of states in which the South Carolina Supreme Court found that such individuals could have been executed". (115)

In any event, state legislation may lag behind what informed opinion on issues relating to the death penalty would consider acceptable. Capital punishment is a highly politicized punishment. While supporting the death penalty – all too often for its perceived appeal as a vote-winning "tough-on-crime" measure – politicians have generally failed to offer the electorate any measurable evidence that judicial killing, let alone of offenders with mental illness, offers a constructive solution to violent crime. A politician who supports the death penalty should surely at least ensure that his or her electorate is fully informed about the issue.

In March 2002, the White House spokesman was asked: "Does President Bush believe the death penalty is appropriate for anyone who’s convicted who’s mentally ill?" The spokesman responded that "the President believes that those are decisions for juries to make based on the laws of their states."(116) When he was Governor of Texas, George W. Bush had said the same thing about the execution of people with mental retardation. In 1999, opposing a bill that would have prohibited the execution of such offenders in his state, he responded that "that’s up to the juries to make those decisions. I like the way the law is now".(117) He made this statement not long before the US Supreme Court in March 2001 decided to re-examine the constitutionality of such executions, eventually outlawing them, in Atkins v. Virginiain June 2002. Governor Bush’s response suggests that the politics of the death penalty can render a politician’s stated position on this punishment an unreliable indicator of contemporary standards of decency.(118)

Similarly, jury decisions to pass death sentences against mentally ill defendants should not necessarily be taken as a reliable indicator of wider societal values. As the American Psychiatric Association pointed out in the wake of the Atkinsdecision:

"A systematic risk of disproportionate punishment also arises in cases involving defendants with severe mental illness. Even though defendants with mental illness are entitled to introduce mental health evidence in mitigation of sentence, commentators on capital sentencing have often observed that juries tend to devalue undisputed and strong evidence of diminished responsibility in the face of strong evidence in aggravation. Indeed, such evidence is often a double-edged sword, tending to show both impaired capacity as well as future dangerousness".(119)

In any event, citizens who will not pass a death sentence for moral or other reasons cannot sit on a capital jury. Those who do sit as capital jurors, therefore, by definition hold views at the punitive end of the punishment/rehabilitation spectrum. For example, research has indicated that "death qualified" jurors are more likely to convict capital defendants who suffer from mental disorders.(120) Moreover, capital jurors may be denied the full picture of the defendant’s impairment, or have their prejudices stoked by prosecutors.

If juror decisions were the measure, then a case such as that of Richard Taylor in Tennessee might suggest that standards of decency failed to evolve on this issue in the two decades from 1984. Richard Taylor, who suffers from mental illness including schizophrenia, was first sentenced to death in that year. His conviction for a 1981 murder was overturned because his mental health history had not been properly investigated by the defence. However, he was then found incompetent to stand trial, and only found competent again 19 years later after being treated in state hospital, including by forcible medication. The conservative Nashville City Paperdescribed the 2003 retrial as a "sad spectacle" and a "grave injustice":

"Taylor asked to act as his own attorney because he said he believes all capital defense attorneys are conspiring to have their clients executed. Judge Russ Heldman granted Taylor’s request because he said Taylor appeared polite, cordial and seemingly competent. We have a huge problem believing that, given Taylor’s demeanour in the courtroom. Taylor didn’t ask any questions of most witnesses. He gave no closing argument, called no witnesses of his own and waived his right to present mitigating evidence, such as his mental health history, during sentencing. For most of the trial he sat in a semi-catatonic state, arms dangling at his side. Several times, Heldman had to call to him to get his attention, a possible side effect of the anti-psychotic medication he is taking. Predictably he was found guilty again and sentenced to death."(121)

It had taken the jury less than three hours to convict Richard Taylor and sentence him to death.(122) Informed jurors, on the other hand, may be sympathetic to mental health mitigation if it is properly presented in a way that seeks to explain, not excuse, the defendant’s actions. In a number of cases, jurors have later come forward to say that they would not have voted for death if they had known the extent of the defendant’s mental impairments (see A double-edge sword, below, for examples). Are not these belated but informed opinions – reached away from the heightened atmosphere of a capital trial and the prosecution’s relentless pursuit of a death sentence – an indicator of how "standards of decency" can evolve when people are better informed?

Among other informed people are those involved in advocacy for people suffering from mental illness. The US organization, NAMI, for example, takes the position that "the death penalty is never appropriate for a defendant suffering from schizophrenia or other serious brain disorders".(123) It believes that "persons who have committed offenses due to states of mind or behaviour caused by a brain disorder require treatment, not punishment".(124) The National Mental Health Association (NMHA) has concluded that "our current system of justice inadequately addresses the complexity of cases involving criminal defendants with mental illness. Therefore, NHMA calls upon states to suspend using the death penalty until more just, accurate and systematic ways of determining and considering a defendant’s mental status are developed".(125) The American Psychiatric Association has adopted the language in the current three-prong proposal on exempting people with mental illness from the death penalty put forward by the Task Force of the American Bar Association Section of Individual Rights and Responsibilities (see Appendix 2). The American Psychological Association is also expected to adopt the same language in early 2006.(126)

Perhaps a Kentucky judge spoke for many people in the USA in 1999 when he granted a defence motion to exclude the death penalty as an option in the case of Kimberly Harris on the grounds of her mental illness. She had been charged with capital murder following the April 1997 shooting of Deborah Bell and Patty Eitel, two directors at the Louisville nursing home where Harris had worked as a nursing assistant until she was fired several weeks earlier. At first she had been found incompetent to stand trial due to her mental illness, but after treatment she was found competent and her trial was scheduled for April 1999.

Circuit Judge Stephen Ryan granted the motion to remove the death sentence as an option after having held an evidentiary hearing. He said: "Based upon the record in its entirety, including the uncontroverted evidence before this Court that Kimberly Harris suffers from a significant mental illness, the Court finds under the principles of fundamental fairness, due process and proportionality it would be unconscionable to impose a death sentence upon this particular defendant. Kimberly Harris is an emotionally disturbed, mentally ill, 23-year-old female who has no prior criminal history. Pursuant to its authority and discretion, the Court declines to engage in an exercise in futility by submitting the option of the death penalty to the jury in this case."(127)

Judge Ryan then allowed Kimberley Harris to enter a plea of "guilty but mentally ill" to two counts of intentional murder and scheduled her sentencing for 15 April 1999. At that stage the maximum sentence she could have faced was life imprisonment without the possibility of parole for 25 years. Although Judge Ryan’s ruling was subsequently overturned, that was the sentence she received after a jury rejected the prosecution’s bid for a death sentence.(128)

‘Mindless vengeance’: Would-be goals of death penalty fail

Mental illness reduces his personal culpability for his acts, rather than increases it. If his violence was the result of illness, then punishing him for his violence is the same as punishing him for his illness

Psychiatrist, report on schizophrenic man on Virginia’s death row, 1997(129)

In 2001, the Washington Postwrote an editorial on the case of Russell Weston, a seriously mentally ill man accused of shooting dead two police officers in the US Capitol building three years earlier, and against whom the US federal government had not ruled out seeking a death sentence if ever he could be found competent to stand trial:

"It’s hard to imagine that trying, convicting and sentencing Mr Weston – to confinement, to death or to anything else – would deter other paranoid schizophrenics from acting on their murderous delusions. Nor is it clear what great retributive interest is served by punishing someone who believes that he is saving the world from cannibals, that time reverses itself and that the people he killed are not permanently dead."(130)

The following year, the US Supreme Court ruled in Atkins v. Virginiathat the death penalty should no longer be used against offenders with mental retardation. It concluded that the penological goals of retribution or deterrence are not furthered by such use of the death penalty. On deterrence, the six Justices in the majority wrote:

"The theory of deterrence in capital sentencing is predicated upon the notion that the increased severity of the punishment will inhibit criminal actors from carrying out murderous conduct. Yet it is the same cognitive and behavioral impairments that make these defendants less morally culpable – for example, the diminished ability to understand and process information, to learn from experience, to engage in logical reasoning, or to control impulses – that also make it less likely that they can process the information of the possibility of execution as a penalty and, as a result, control their conduct based upon that information. Nor will exempting the mentally retarded from execution lessen the deterrent effect of the death penalty with respect to offenders who are not mentally retarded. Such individuals are unprotected by the exemption and will continue to face the threat of execution. Thus, executing the mentally retarded will not measurably further the goal of deterrence."

The theory that the death penalty has any special deterrence effect has largely been discredited.(131) Indeed, "in a civilized society where people are valued for their intrinsic worth, as ends rather than means, to deliberately kill an individual so that he may serve as an example to others seems untenable. Using capital punishment as a deterrent seems patently unfair because it punishes the inmate for the potential crimes of others, not just for what he has done."(132) Nevertheless, some politicians continue to ascribe their support for judicial killing to a belief in the deterrent theory (without providing any credible supporting evidence).(133) Amnesty International urges them to ask themselves how executing the 100 people listed in the appendix to this report furthered the goal of deterrence. Certainly no one believes that the death penalty can deter people from becoming psychotic. The 1976 Gregg v. GeorgiaSupreme Court decision that allowed executions to resume in the USA noted that, whatever the evidence surrounding the deterrence argument, "[w]e may nevertheless assume safely that there are murderers, such as those who act in passion, for whom the threat of death has little or no deterrent effect." Any deterrent effect, the Court suggested, would only apply to "carefully contemplated murders, such as murder for hire, where the possible penalty of death may well enter into the cold calculus that precedes the decision to act".

How, under this theory, would it further the goal of deterrence to execute, for example, George Banks? Pennsylvania Governor Ed Rendell said that the warrant he signed in October 2004 for 62-year-old Banks to be executed was "very, very appropriate", adding that when he had campaigned for election he had "told people I was for the death penalty in the most severe cases – and I believe this fits into the ‘most severe case’ category".(134) George Banks’ crime was indeed unusually extreme – he was sentenced to death for a shooting that left 13 people dead, including five of his own children. That he suffers from mental illness, however, is also undisputed. The shootings occurred within days of his having been assessed as suicidal, depressed and displaying paranoid thinking. At his trial, both prosecution and defense experts agreed that he suffered from a "serious mental defect", including "paranoia psychosis". Affirming his death sentence in 1987, the Pennsylvania Supreme Court noted that:

"we wish to make clear that we are aware that[Banks] suffers and has suffered from a mental defect that contributed to his bizarre behavior both in the courtroom and on September 25, 1982, when thirteen innocent persons were murdered by his hand. His behavior was inexplicable, and his thought-processes remain difficult to comprehend."

Since being on death row, George Banks has made numerous suicide attempts and threats of suicide. He has been diagnosed with suffering from various mental illnesses, including paranoid schizophrenia, depression, and schizoaffective disorder. His delusional thoughts and behaviour included engaging in a hunger strike in an attempt to force the authorities to exhume his murder victims to prove his conspiracy theory that one or more of them had been killed by the police. In 2004, a psychiatrist concluded that George Banks was incompetent to be executed under Ford v. Wainwrightand incompetent to assist his lawyers. He wrote:

"As a result of Mr Banks’ psychotic thought disorder, clinically significant depression and disordered personality, his contact with reality, and ability to determine what reality is, are seriously impaired. For example, for several years Mr Banks has expressed the belief that his convictions and sentences were vacated by God, and that he should have been released from prison as a result. He believes that he is being held illegally as the result of a conspiracy."(135)

George Banks’ 2 December 2004 execution date was stayed on the question of his competency. At the time of writing, a hearing in state court on the question of competency was still pending, with the State of Pennsyvlania continuing to seek his execution. It is surely clear that not only was he not deterred from his crime by the threat of the death penalty, but no-one suffering from similarly delusional thinking would be so deterred either.

On the question of the retributive goal of the death penalty, the Atkinsmajority said: "With respect to retribution – the interest in seeing that the offender gets his just deserts – the severity of the appropriate punishment necessarily depends on the culpability of the offender". The death penalty assumes absolute, 100 per cent culpability, on the part of the condemned. If there is any diminished culpability, then the retributive goal fails, as the punishment becomes disproportionate. In Roper v. Simmonsin March 2005, the Court found the same in the case of children under 18 years old at the time of the crime: "Once the diminished culpability of juveniles is recognized, it is evidence that the penological justifications for the death penalty apply to them with lesser force than to adults".(136) So, too, with the seriously mentally ill. As Scott Panetti’s sister, Vicki Panetti, said to Amnesty International three weeks before this seriously mentally ill man was scheduled to be executed on 5 February 2004:

"My brother did an awful thing, but he was a mentally ill man… now the state is doing all it can to make sure it gets him to the execution chamber. How does this help anyone? I believe that Scott could not help what he did. He was sick. But the State of Texas will be committing a coldly calculated murder if it kills Scott. How can this be justice? Surely my country can do better than this?"

Scott Panetti was not executed as scheduled. However, at the time of writing he was still on death row and facing the possibility of a new execution date (see Reality Check 1).

Protecting the dignity of society

A psychologist testified at David Long’s Texas trial that Long was probably insane at the time of the crime and recommended a full neurological examination because of the "high probability" that brain damage played a role in the offence. The psychologist said that without such an examination, a complete diagnosis was impossible. The court refused to release the funds to the defence lawyers so that they could have such an evaluation carried out. The prosecution psychiatrist testified, without having examined David Long, that the defendant was "sociopathic" but sane. The jury sentenced him to death. Post-conviction neurological testing confirmed that David Long did indeed have brain damage.

David Long attempted suicide by drug overdose two days before he was due to be executed in Texas on 8 December 1999. He was still in intensive care in hospital in Galveston, about 200 kilometres from the Texas death chamber, as his scheduled execution approached. As in other cases, David Long’s suicide bid was not interpreted as a mental health issue, but rather a prisoner’s effort to cheat the executioner.(137) In denying a stay of execution, state Judge Ed King ruled: "The desire to cheat the hangman or thumb your nose at the state does not mean you’re incompetent to be executed." The state authorities saw no reason to delay either, and in contrast to the lack of resources provided for his defence at the time of the trial, the state spared no expense in having him killed. He was flown by aeroplane to Huntsville, accompanied by a full medical team to ensure his safe arrival. As he was given the lethal injection, David Long "snorted and began gurgling. A blackish-brown liquid spouted from his nose and mouth and dribbled to the floor".(138) This was the charcoal solution that had been used to detoxify his body, only hours before it would be injected with lethal chemicals. The niece of one of David Long’s murder victims, who had come to attend the execution, became distressed at the spectacle and left the witness room.

According to the US Supreme Court, "the basic concept underlying the Eighth Amendment [ban on cruel and unusual punishments] is nothing less than the dignity of man".(139) The US government claims to be committed to the principles of human dignity. In September 2003, President George W. Bush told the UN General Assembly that the USA and the United Nations shared a common commitment, namely "that human beings should never be reduced to the objects of state power or commerce, because their dignity is inherent". In his inaugural address as President on 20 January 2001, a little over a year after he refused, as Governor of Texas, to intervene to stop the execution of David Long, he pledged "to affirm the dignity of our lives and every life". He has repeated his country’s commitment to the "non-negotiable demands of human dignity" many times since.

In Ford v. Wainwright, outlawing the execution of people who are incompetent to be executed, the US Supreme Court majority noted that one of the aims of such a ban was "to protect the dignity of society itself from the barbarity of exacting mindless vengeance".(140) The death penalty, in Amnesty International’s opinion, is per seincompatible with human dignity – both of the condemned and of society itself. Sometimes there are signs that it is indeed vengeance rather than retribution fuelling pro-execution sentiment, even in the case of condemned inmates with serious mental illness. There are numerous examples of elected state officials – prosecutors, governors, legislators, even judges – making comments that suggest it is anger, hatred and politics, rather than justice and fairness, that drive the system.

In 1992, dissenting from the Louisiana Supreme Court’s prohibition of the state forcibly medicating Michael Perry in order to make him competent for execution, Justice Cole wrote:

"What seems arbitrary to me is the fact the survivors of the victims of Perry’s crimes, as well as society at large, should be deprived of a just resolution of the matter through the fortuity of Perry’s having become insane after conviction and sentence but before the sentence should be carried out… One thing that will not be arbitrary but will be fairly predictable, however, is the number of present and future death row inmates who become ‘insane’ upon reading the majority’s opinion…

American citizens grow increasingly appalled by, and alienated from, a legal system that affords criminals greater rights than law abiding taxpayers. Contemporary society is awash with callous, cold-blooded killers who themselves are provided room, board, clothing, and medical care at taxpayers’ expense for an average of 8-15 years from the time of the crime to the time (if ever) of execution. Restoring a convicted murderer to sanity and subsequently carrying out the sentence is in no way unacceptable to contemporary society…The fact that he fortuitously, perhaps conveniently, became insane prior to his execution does not detract from the legitimacy of his sentence."(141)

In 1996, the Oklahoma Attorney General displayed a similarly disturbing attitude to the execution of the mentally ill. His comments concerned the case of Glen Ake and Steven Hatch. Glen Ake shot dead two people after he and Hatch had robbed their home. Steven Hatch had already left the house when the seriously mentally ill Glen Ake shot the couple. The two men were sentenced to death in separate trials. Diagnosed with chronic paranoid schizophrenia, Glen Ake had initially been found incompetent to stand trial. After treatment in a mental hospital, he was ruled competent on the condition that he be treated with anti-psychotic medication during the proceedings. In a landmark ruling, his conviction and death sentence were overturned by the US Supreme Court because, despite the fact that his sanity at the time of the crime was a significant factor at the trial, the indigent defendant was denied access to expert psychiatric assistance.(142) At his retrial, Glen Ake was sentenced to life imprisonmnent. Steven Hatch’s death sentence survived, however. At his clemency hearing in July 1996, his appeal lawyer asked if Hatch’s execution would serve justice "or vengeance because we can’t reach the one who pulled the trigger?" State Attorney General Drew Edmondson, who is still in office, countered that the injustice was not that Hatch would be executed, but that Ake would not be.(143) Steven Hatch was put to death in August 1996. A state Senator, who was the son of the murder victims, witnessed the execution. He had written the law that allowed him to do so. In 1997 he authored an amendment to the law which allowed additional murder victims’ relatives, including in-laws and grandchildren, to witness executions.(144)

When the murder victim’s family is against the execution, the state will tend to ignore it as much as it will ignore the suffering of the condemned prisoner’s family and as much as it will stand shoulder to shoulder with bereaved relatives who favour a retributive killing.(145) Shortly before the execution of Pedro Medina in Florida in 1997, a state Supreme Court Justice noted that that "the surviving daughters of the victim in this case have testified that they do not believe that Medina killed their mother and they are against him being executed." He noted that "it is undisputed at this point that the State possessed evidence that implicated [another man] in the murder and failed to disclose this evidence to the defendant". (146)

Pedro Medina maintained his innocence to the end. His final words before being executed in the electric chair were "I am still innocent". His execution caused international outrage. During the execution in the state’s electric chair, the mask covering Medina’s face burst into flames and smoke filled the death chamber. The response of various state politicians was highly disturbing. The Attorney General Bob Butterworth said: "People who wish to commit murder, they better not do it in Florida because we may have a problem with our electric chair".(147) Governor Lawton Chiles said: "Putting somebody to death is not the most friendly thing that you do, [but] that is the law of Florida" (148) The chairman of the Senate Criminal Justice Committee, Al Gutman, said: "The death penalty is not a pleasant thing. It’s not meant to be. It’s supposed to work as a deterrent."(149) Senate Majority Leader Locke Burke rejecting suggestions that the state should switch to lethal injection, said that "A painless death is not punishment. It’s important that there is a deterrent and a punishment element."(150)

The indecency of the execution and the official reaction to it was compounded by the fact that Pedro Medina had a long history of mental illness, including a diagnosis of paranoid schizophrenic or major depressive disorder with psychotic features. At the age of 19 he had been taken from a mental hospital in his native Cuba and put on a boat to the USA as part of the Mariel boatlift in 1980. The crime for which he was sentenced to death occurred in Florida in 1982. His appeal lawyers challenged his imminent execution based on expert evidence that he was insane. They presented "extensive evidence of his long mental illness which included the detailed reports and affidavits of three professional mental health experts who had examined the defendant at length. These experts concluded that the defendant was incompetent to be executed insofar as his mental ability to comprehend what was happening to him." (151)

Two years and a half years after Pedro Medina’s execution, at a Florida House of Representatives Criminal Justice and Corrections Council hearing, Representative Howard Futch suggested that because death row inmate Thomas Provenzano thought he was Jesus Christ – which even the courts agreed was the reason he believed he was to be killed – the state should "just crucify him". The legislator continued: "I’d make him a cross, and we could take it out there to Starke [death row] and nail him up." The St Petersburg Timesdescribed Representative Futch’s comments as "vicious, ill-judged and revealing. In his dim-witted way, Futch has laid bare the truth of the death penalty in Florida: It’s not about justice. It’s not about deterring crime. It’s about vengeance."(152) Thomas Provenzano was executed in Florida on 21 June 2000.(153) Shortly before he was killed, his sister wrote:

"I have to wonder, where is the justice in killing a sick human being? I know that the death of a loved one is an incredibly awful experience – particularly when the cause of death is murder. But the horror of losing a loved one to execution is all but ignored by this society. Why? Must this society pick and choose who to feel sympathy for? Does this indifference to inmates’ families somehow make executions more tolerable? Despite what one may feel about the concept of the death penalty, it must be remembered that it is a deliberate, but avoidable act of homicide that always leaves a grieving family in its wake. It never brings a victim back to life. And, even death penalty proponents now concede the fact that it does not deter others from committing violent crimes.

I tried to get help for Thomas when he first started having these problems, but we were denied the help he needed. We could not afford private hospitalization. The only way I could get help for him without his permission was if he did something violent. Eventually he did do something violent, but instead of being offered help, he was sentenced to death.

We need intervention programs so that people like myself can find help for a loved one who is mentally ill – before they harm either themselves or an innocent person. If my brother had been properly treated years ago, he wouldn’t be on death row now. More importantly, the three people he harmed would still be whole.

Try to remember me at 6pm…this Tuesday. That is when the State will deliberately take the life of my mentally ill brother, despite the fact that other alternatives exist. That is when I will join the ranks of Florida citizens who have lost a loved one to unnecessary violence."(154)

In denial: Burying society’s mistakes

If Larry had got the treatment that we begged for for years, five people would be alive today and Larry wouldn’t be on death row.

Lois Robison, mother of Larry Robison, 1999

The death penalty represents a refusal by society to accept even minimal responsibility in the crime which resulted in a punishment that assumes 100 per cent culpability on the part of the defendant. In some cases involving mentally impaired defendants, there are indications that individuals within wider society failed to heed warnings that could have averted a tragedy. This is not to suggest that crimes committed by mentally impaired people are to be condoned or excused. It is, however, to ask whether society could devote its energies and resources more constructively.

Should society have taken any responsibility in Cyril Wayne Ellis’s crime, for example, rather than responding with the death penalty? He had a history of mental illness and in the weeks leading up to his crime, Cyril Ellis had been displaying mental problems, including auditory hallucinations. A test taken at the time indicated possible paranoid schizophrenia. After an apparent suicide attempt, Ellis was treated in a psychiatric hospital. He left the hospital voluntarily after two days, in a disturbed state. On the same day, 30 January 1986, he attempted to buy a gun from a local shop. He did not have enough money to purchase the weapon, so one of the shop assistants agreed to loan him his own gun. Ellis then purchased ammunition from the shop and left. That transaction had appalling consequences. The following day, Cyril Ellis killed two people and injured several others during a shooting spree in Oklahoma City. He was sentenced to death and remained on death row for the next 15 years. During that time, the state devoted legal resources arguing in the appeal courts that it should be allowed to kill Cyril Ellis. It almost succeeded. It was not until 10 December 2002 that the US Court of Appeals for the Tenth Circuit overturned Ellis’s death sentence on the grounds that the trial court had improperly excluded critical evidence of his insanity at the time of the crime.(155)

Scott Panetti is on death row in Texas for shooting his parents-in-law in 1992, several years after he was first diagnosed with schizophrenia and two months after the last of his many hospitalizations in psychiatric facilities. In a 1999 affidavit, Sonja Alvarado, the victims’ daughter and Scott Panetti’s estranged wife, recalled a number of incidents prior to the crime in which she alleged that the police had failed to act on the family’s concerns about the threat that Scott Panetti posed. She recalled that after one incident only weeks before the killing of her parents, "My mother and I begged the police to take the rifles. Scott had his deer rifle, the 30.06 rifle he used to kill my parents, and the other shotgun at my parents house. Even though the police were told to take the guns, they did not. Scott had made threats against my parents."

Police, prosecutors and the courts should conduct themselves in a way that protects the rights, not only of the victims of crime but also of particularly vulnerable populations, including persons with mental disorders. One important goal of the criminal justice system should be to ensure that no one with a mental disorder is inappropriately held in police custody or in a prison. At present, this goal is not often achieved. Far too many people with mental disorders are prosecuted and imprisoned, often for relatively minor offences. There is increasing worldwide concern about people with mental disorders being incarcerated in prisons, rather than being cared for in mental health facilities… The large numbers of persons with mental disorders incarcerated in prisons is a by-product of, among other things, unavailability or reduced availability of public mental health facilities, implementation of laws criminalizing nuisance behaviour, the widespread misconception that all people with mental disorders are dangerous, and an intolerance in society of difficult or disturbing behaviour… Unfortunately, prisons have become de facto mental hospitals in a number of countries… Mental health legislation can help to prevent and reverse this trend by diverting people with mental disorders from the criminal justice system to the mental health care system. World Health Organization, 2005 (WHO Resource Book on Mental Health, Human Rights and Legislation,

Forty-two-year-old Larry Keith Robison was executed in Texas on 21 January 2000, 17 years after he killed five people in Fort Worth. He always maintained that the appalling events of 10 August 1982 were the result of auditory and visual hallucinations brought on by his mental illness. He was first diagnosed as suffering from paranoid schizophrenia three years before the murders, but the Texas mental health care services repeatedly said that they did not have the resources to treat him unless he turned violent. The state had no such hesitation in devoting resources to its own lethal response to the crime.(156)

Larry Robison’s story is not unique, and one does not have to look far to find a similar case. Forty-three-year-old James Colburn was executed in Texas on 26 March 2003. He had an extensive history of paranoid schizophrenia, an illness with which he was first diagnosed when he was 17 years old. In November 2002, his sister Tina Morris recalled to Amnesty International:

"As a child, James was very good, but when he reached puberty that’s when we started seeing differences in him. He became very isolated, not into the family at all, real withdrawn, he was scared of everybody, he was in constant fear… He would say this little man would eat out of his stomach… The little demon would tell him what to do. He said that one time it told him to kill my grandmother, which was like his mother, and he said he had to leave the house for about a week to fight the voices. He was 16.

When my parents’ insurance wouldn’t cover him after [he was] 18, he didn’t have insurance coverage. But James himself tried to check himself in to Tri County [hospital] in Conroe. James begged for help. He had been in Galveston mental hospital, he had been at one here in Houston. He had been in a lot of different facilities, but when he turned 18 and the insurance was cut off, …, we begged for help, begged for help... My grandparents and my parents drained their finances pretty much trying to help him. He tried himself, he went to the Tri County, he himself wanted help, and they, you know, just pushed him out on the street, give him his SSI [social security] check, and just push him out there, and he was scared in society. He likes being in confined places, because he feels like he can fight those voices off if he is by himself.

My brother --, I’m going tell you honestly -- everybody pushed him away because when you would meet him, it would look like he was looking straight through you, and he was scared, and he never smiled. He was just constantly scared. I remember taking him numerous times to places trying to get him jobs as a dishwasher and everything else and everybody was just scared of him. And he never hurt anybody up until this day, up until when he did this to Peggy Murphy, he never hurt anyone. In his previous convictions, you see, my brother never hurt anyone, he was never violent. But I think he committed this crime because he knew he’d be locked away, he thought for the rest of his life.

My mother called me at home, and I was living in an apartment at the time, and she said ‘Tina you need to get the Conroe Courierand look at the front page’. And I went and got it and I seen what happened…this is what it had come to. He’s committed such a desperate crime because he’s so… he just needs help, he’s so desperate. Nobody helped him. Nobody helped him. Nobody."

After the execution, Tina Morris said: "The state has killed a very mentally ill man. I feel sorry for the victim’s family but I also feel sorry for my family right now, too." James Colburn’s brother added: "Society is very uneducated when it comes to mental illness".

As James Colburn’s execution approached in November 2002, the Houston Chronicleasked "what justice is there, really, in carrying out a capital punishment sentence for a person who suffers from voices and hallucinations caused by a disabling major mental illness? Adequate mental health services may have spared Colburn years of suffering and might have spared his victim’s life. It is no secret that Texas has inadequate resources for helping the mentally ill lead normal lives. Looked at another way, it would be better for all and a service to justice if such serious mental health issues were addressed before there is any need to deal with them within the criminal justice system and on death row."(157)

In July 2004, the Houston Chroniclewrote that the problem has not yet been fixed, noting that there were nearly 7,000 people with mental illness in Texas waiting for treatment. The paper continued:

"The vast majority of mentally ill people are not violent; taken seriously, either with supervision or institutionalization, those who do pose a threat to others can also be managed… The [waiting] list exists because funds simply aren’t there to treat them all. Meanwhile, it costs about $2.3 million to try one capital murder case and endless appeals can drive the cost higher. No matter how many executions jurors order up, Texas always manages to find the cash. These priorities are wrong and dangerous. For the sake of public safety, legislators must value prevention as much as punishment for violent crime. Attending to the mentally ill is a sane way to start."(158)

Subjective opinion & inexact science in an adversarial system

It is well known that prejudices often exist against particular classes in the community, which sway the judgment of jurors, and which, therefore, operate in some cases to deny to persons of those classes the full enjoyment of that protection which others enjoy

US Supreme Court, 1880(159)

In a landmark ruling in 1995, the highest court in South Africa found the death penalty to be unconstitutional. Writing his concurrence with the opinion, the Chief Justice of the Court noted that:

"The differences that exist between rich and poor, between good and bad prosecutions, between good and bad defence… and the subjective attitudes that might be brought into play by factors such as race and class, may in similar ways affect any case that comes before the courts, and is almost certainly present to some degree in all court systems. Such factors can be mitigated, but not totally avoided, by allowing convicted persons to appeal to a higher court… Imperfection inherent in criminal trials means that error cannot be excluded; it also means that persons similarly placed may not necessarily receive similar punishment. This needs to be acknowledged. What also needs to be acknowledged is that the possibility of error will be present in any system of justice and that there cannot be perfect equality as between accused persons in the conduct and outcome of criminal trials…[T]he question is, whether this is acceptable when the difference is between life and death."(160)

The following examples serve as a reminder that, in addition to the subjective lay opinion that will come into play in the jury room, subjective prosecutorial and judicial opinion, as well as divergent expert opinion, can often feature in cases involving defendants who raise claims of mental illness, either in arguing diminished criminal responsibility, in mitigation against a death sentence, or as a reason not to carry out an execution. One reason to abolish the death penalty is the inherent impossibility of even the most sophisticated justice system ensuring the fair, consistent and error-free selection of those who "deserve" to die.

There is much we do not know about mental health – it is not an exact science, and inevitably experts and lay witnesses alike will make errors or bring their own biases into the courtroom. Indeed, the fear and ignorance surrounding the question of mental illness may make the adversarial system of criminal justice particularly unsuited to adjudicating such cases, not least where decisions of life and death are concerned. The US capital justice system has been shown to be prone to prosecutorial misconduct, inadequate legal representation for indigent defendants, as well as juror prejudice.(161) In such a system, how much more vulnerable is a category of offender, the mentally ill, about whom there is a general level of ignorance and fear?

24. At the June 2005 death penalty trial of Isaac Jones in Chattanooga, Tennessee, for the shooting of a police officer, three experts for the defence testified that they had diagnosed the defendant with schizophrenia. The prosecutor told the jury, "Let’s get one thing perfectly straight. Schizophrenics don’t kill. Killers kill".(162)

25. In Texas, Ramon Mata vacillated between appealing his death sentence and dropping his appeals and asking to be executed as soon as possible. Mata had a long history of mental illness, was receiving medication in prison for such illness and had made several suicide attempts on death row. A court-appointed psychologist and psychiatrist both concluded that Mata was not competent to drop his appeals. The psychiatrist had determined that Mata was suffering from a paranoid delusional disorder and that his suicide attempts and his delusions of seeing and talking with his murder victim were genuine. The defence urged a federal judge to declare Mata incompetent to waive his appeals or to hold a hearing to determine the issue. The federal judge described the defence motion as based on "trendy and trashy psycho-analytical analysis" and dismissed the motion without ruling on competency. In 1999, after further vacillation by the prisoner, the judge ruled Mata competent, without having held any hearings, or ordered any further examination. The court based its decision on the fact that Mata had been found competent to stand trial 13 years earlier.(163)

26. In the case of Arthur Baird, the Indiana Supreme Court wrote in 1997 that: "We do not exclude the possibility that a scientific breakthrough [relating to our understanding of mental illness] may generate post-trial evidence that justifies revisiting the findings of an earlier jury or an earlier sentence".(164) In 2004, in the same case, the US Court of Appeals for the Seventh Circuit wrote:

"No doubt had Baird been sane he would not have killed his wife and parents, if only because he would not have believed that the government was going to pay him a million dollars for his ideas about how to solve the nation’s problems; the delusion seems somehow to have precipitated these rationally motiveless crimes. But he knew he was committing murders and knew it was wrong to do so, and no one can assign a precise weight to the delusion, or the obsessive-compulsive disorder to which the delusion was in some way related, in the mental process that led to the killing of his parents. Clearly, his volition, his self-control, was impaired by a mental disease – but how much, in relation to other unknown factors at work in his mind during the period in which the murders occurred, we shall never know. Judgment in a case such as this is committed to the discretion of the state courts. It is for them, not us, to determine in each individual case what weight to give mental disease that does not obliterate consciousness of wrongdoing in deciding whether to impose the death penalty for murder." (165)

27. In May 1998, at a competency hearing, a California jury decided by nine votes to three that death row inmate Horace Kelly was sane enough to be executed, in other words that he knew the reality for, and reality of, his punishment, despite compelling evidence to the contrary. One of the jurors who voted for execution reportedly said that the prohibition on executing the insane was "a bunch of baloney", adding that "anyone locked up in a tiny cell for 13 years with no windows and no contact with the outside world is going to go crazy", but that was no reason that they should not be executed. Another of the pro-execution jurors described the evidence of Kelly’s severe mental illness as "too textbook".(166) Another said: "I think he’s definitely ill, but I don’t think he was insane". Another of the nine said: "Our purpose was to determine is this man sane or not. After three weeks of testimony, it wasn’t a hard decision to make. He knew that he is going to die." Another said: "[E]ven with schizophrenia, there are levels of awareness. He knows what’s happening. I think he knows why." In contrast, the foreman of the jury pointed to the fact that six of the seven psychiatrists who testified had concluded that Kelly was incompetent: "The evidence clearly showed that he was insane".(167) Although the 9-3 ruling cleared the way for execution, Horace Kelly remains on death row in California.

28. Jerry McWee was executed in South Carolina on 16 April 2004 for a murder of a shop assistant during a robbery in 1991. At the sentencing phase of the trial, the defence presented a psychiatrist who testified that the defendant was mentally ill, suffering from "severe depression", "psychosis" and "command hallucinations" from a dead cousin. For the prosecution, another psychiatrist testified that, in his opinion, Jerry McWee was faking his mental illness.(168) During closing arguments, the prosecutor referred to the defendant as "like a dog turned wrong and gone rabid".(169)

When the mental health of the defendant or inmate is an issue in the trial or on appeal, it will frequently be the case that the defence and the prosecution will each find one or more mental health experts to testify. Too often it can become, in essence, a "swearing match" between the two sets of experts, with the jury ending up none the wiser. Worse, in some cases, prosecutors will have inflamed the situation by playing on juror prejudice and fear.

At Andrew Brannan’s trial in Georgia in January 2000, the defence raised an insanity defence, presenting experts to testify that Brannan, a Vietnam War veteran, had been under the influence of combat-related post-traumatic stress disorder when he shot a police officer. In closing arguments the prosecutor urged the jury not to let the defence experts – what he called "these hired guns" – "muddy up the water", like an octopus squirting out ink to confuse attackers: "And while they’re in that murky ink, that old octopus slithers, just slithers away". "What’s an expert?" the prosecutor asked the jury, urging them to reject the insanity defence. Responding to his own question, he characterized an expert as "somebody thirty miles from home with a briefcase", whom the jurors should ignore in preference to their own "common sense". Stoking juror fears, he suggested that an insanity verdict would mean release, rather than involuntary commitment to a psychiatric facility. The jury was persuaded and it sent Andrew Brannan to death row, where he remains (see Killing State, below).

In Atkins v. Virginia, US Supreme Court Justice Antonin Scalia dissented from the majority’s ruling prohibiting the execution of people with mental retardation (as he did in the subsequent Roper v. Simmonsruling against the execution of child offenders). He argued that the Atkinsdecision threatened to turn "the process of capital trial into a game", and suggested that it would lead to many individuals faking mental retardation to escape the death penalty. He said that "whereas the capital defendant who feigns insanity risks commitment to a mental institution until he can be cured (and then tried and executed), the capital defendant who feigns mental retardation risks nothing at all."

Justice Scalia’s opinion would undoubtedly find favour among some in the prosecutorial community. In 2002, for example, a former District Attorney in Georgia wrote that "the problem with many death penalty cases is that defense lawyers are raising issues related not to insanity but to the much broader area of mental illness… I would be mentally ill if I thought they were going to put me to death". He suggested that jurors can "sift it out and come to a proper conclusion. But then years later, we have a hue and cry, ‘This person should not be executed because they are mentally ill or retarded’."(170) In similar vein, in 1999 the head of the criminal appeals division of the Arizona Attorney General’s Office, frustrated by the refusal of members of the medical profession to breach ethical codes by restoring mentally ill death row inmate Claude Maturana to competency for execution, said: "It’s the excuse of the month. All of a sudden, everyone on death row is incompetent to be executed". The mother of the murder victim agreed that the prisoner should be executed, despite having been found to be insane: "It’s time to set a precedent. The whole thing is nothing but a scam. [The prisoner] understands what he did and why he did it. The victim should have rights, too."(171) Her suffering is understandable. The state’s response, however, is unacceptable. It should find ways other than executing mentally ill inmates to help the families of murder victims.

The suggestion that the defendant or inmate is faking or exaggerating their mental illness is a position that has frequently been adopted by the state. This occurred in the case of James Willie Brown in Georgia, and raises serious questions about the fairness of the system that took him to the execution chamber.

James Brown had a long history of mental illness, including repeated diagnoses of schizophrenia. He joined the army at the age of 17, but was discharged after less than two years because of his mental illness.(172) Without proper treatment, he began to take illegal drugs and was first arrested in 1968 when he was 20. He was found incompetent to stand trial, and committed to a psychiatric facility. He was arrested in 1975 for the murder of Brenda Watson. Again, he was found incompetent to stand trial due to his mental illness and committed for treatment. His trial was delayed for six years on the grounds of mental incompetence. This meant that between the time of his first arrest and his 1981 murder trial, he was in mental facilities for 70 per cent of the time, both on an involuntary and voluntary basis. His 1981 trial resulted in a death sentence, but in 1988 a federal court overturned his death sentence due to doubts that he had been competent to stand trial seven years earlier. He was retried in 1990, and again sentenced to death.

At the retrial, the defence presented two experts who testified that James Brown suffered from chronic paranoid schizophrenia. In a subsequent affidavit, given in 1994, one of these experts stated: "Considering the type of illness, his extensive medical history and my examination of Mr Brown, it was my opinion to a reasonable degree of medical certainty that Mr Brown was psychotic at the time of the alleged offense and that he acted upon delusions and therefore, could not distinguish between right and wrong at the time. Based upon my recent review of the additional materials, I stand by my original diagnosis and this opinion." In addition, two inmates who were in the county jail at the time of James Brown’s arrest gave post-conviction affidavits that describe how he was out of touch with reality and psychotic.

The state’s position at the 1990 retrial, however, was that James Brown was faking his mental illness. It presented a doctor who stated that, in his opinion, the defendant did not have schizophrenia, but had suffered drug-induced flashbacks. This doctor appears to have ignored James Brown’s long history and repeated diagnoses of mental illness – over the years more than 25 mental health experts employed by the state had found James Brown to be mentally ill and not malingering. In closing arguments, the prosecutor stated to the jury: "That brings us to the question that [the defence lawyer] wanted you to consider, should we put the mentally ill to death. Well, I don’t know the answer to that question... And you don’t have to decide that question in this case. Because, ladies and gentlemen, this man isn’t mentally ill, he has never been mentally ill, and he is not mentally ill today. He was not mentally ill on the [day of the crime]."

To bolster the state’s theory that the defendant was malingering, the prosecution presented a former inmate, Anita Tucker, who said that James Brown had confided in her that he was faking his illness. Anita Tucker later recanted that testimony, and testified in post-conviction proceedings that her earlier testimony was part of a deal with the prosecution in exchange for her early release on her own criminal charges. James Willie Brown was executed in Georgia on 4 November 2003.

The state’s claim that a person is faking their mental illness may also come in the post-conviction stage as the state pursues the execution of the death sentence it obtained at trial. This happened in the case of Monty Delk who was put to death in Texas on 28 February 2002 for the murder of Gene Olan Allen in 1986 when Delk was 19 years old. Monty Delk’s mental health problems first emerged in 1989. In 1990, the prison medical authorities diagnosed him with bipolar disorder with psychotic features, and also raised the possibility that he was suffering from schizo-affective disorder. He was given anti-psychotic drugs and lithium. Monty Delk displayed a pattern of disturbed behaviour over his years on death row, including covering himself in faeces, and incoherent jabbering. He repeatedly expressed delusional beliefs, such as that he was a submarine captain, a CIA or FBI agent, or a member of the military. At a court hearing in 1993, at which an earlier execution date was set, he responded to the judge in prolonged streams of unbroken gibberish. At another hearing in 1997 to determine his competency to continue with his appeals, Monty Delk was gagged and then removed from the courtroom after repeatedly interrupting the court with nonsensical utterances. He was later brought back in, but removed again when he continued to utter nonsense, such as saying to the judge "I is you"; "Will you please blow my head off"; and "I’m an FBI agent". At the hearing, a former chief mental health officer with the Texas prison system said that his review of the prison records and his own contact with Monty Delk suggested that the prisoner was suffering from a severe mental illness.

Three years earlier, the prison diagnosis of Monty Delk had been changed to one of malingering - that he was feigning mental illness to avoid execution. This followed an alleged statement to this effect made by Delk to another inmate and overheard by a prison staff member. In 1999 when the state’s death row was transferred from Huntsville to Livingston, medical staff at the new unit diagnosed Delk with bipolar disorder. However, after they were made aware of the 1994 re-diagnosis, the official position once again became that his mental illness was pretence. If Monty Delk was indeed acting, he fooled many mental health professionals. He also maintained the "act" for years and right up to the point of his death. The Texas Department of Criminal Justice recorded Monty Delk’s final statement as:

"I’ve got one thing to say, get your Warden off this gurney and shut up. I am from the island of Barbados. I am the Warden of this unit. People are seeing you do this".

Some prosecutors have revealed that they consider mental health defences to be an excuse, a position which may be shared by a certain percentage of the population and, therefore, jurors. In 1999, Sean Sellers became the first and only person to be executed in the USA in the "modern" era of the death penalty for a crime committed at the age of 16. In his post-conviction proceedings, evidence emerged that he suffered from serious mental illness. A few months after the trial, a renowned expert, Dr Dorothy Lewis, found that Sellers was chronically psychotic and exhibiting symptoms of paranoid schizophrenia and other major mood disorders. In 1992, six years after the trial, three mental health professionals diagnosed Sean Sellers as having multiple personality disorder (MPD – now known as dissociative identity disorder), an illness in which "alter" personalities manifest themselves in the sufferer. In 1998, the US Court of Appeals for the 10th Circuit admitted that, if believed by a jury, the evidence that Sellers was suffering from this mental illness at the time of the crime, "renders the person known as Sean Sellers actually innocent". It noted that the psychiatric evidence was "clear, strong and supportive". Nevertheless, restricted by the rules applicable to appeals of state sentences in federal court, the 10th Circuit upheld the sentence.(173)

As Sean Sellers’ execution approached, the prosecutor who put him on death row, Oklahoma County District Attorney Bob Macy, was asked in an interview if it would "make any difference to your view if it turned out he did have Multiple Personality Disorder?" The prosecutor replied: "No, I regard it as an excuse, it would not change my mind. One of the personalities did the killing and needs to be held accountable".(174)

Two years later, in a dissent against the impending execution of an inmate with schizophrenia in Ohio, a more enlightened view was heard. Justice Paul Ffeifer of the Ohio Supreme Court wrote: "Mental illness is a medical disease. Every year we learn more about it and the way it manifests itself in the mind of the sufferer. At this time, we do not and cannot know what is going on in the mind of a person with mental illness… Executing [Jay Scott] will be another assertion that taking the life of a person with mental illness is no different than taking the life of a person without mental illness… I believe Ohioans are better than that… I believe that executing a convict with severe mental illness is a cruel and unusual punishment".(175)

An execution cannot provide an answer to an apparently inexplicable crime or the role that the offender’s mental impairment may have played in it. Instead it is a response that seeks to blot out the symptom rather than understand the disease.

The mentally ill: Also at ‘special risk of wrongful execution’?

The US Supreme Court majority in Atkins v. Virginianoted that a part of the reason for prohibiting the execution of offenders with mental retardation was that "in the aggregate [they] face a special risk of wrongful execution". By this, the Court meant not only that the particular vulnerabilities of such individuals placed them at particular risk of wrongful conviction, but also of being sentenced to death when a non-impaired individual might receive a life prison term. The Atkinsruling stated:

"The risk that the death penalty will be imposed in spite of factors which may call for a less severe penalty, is enhanced, not only by the possibility of false confessions, but also by the lesser ability of mentally retarded defendants to make a persuasive showing of mitigation in the face of prosecutorial evidence of one or more aggravating factors. Mentally retarded defendants may be less able to give meaningful assistance to their counsel and are typically poor witnesses, and their demeanor may create an unwarranted impression of lack of remorse for their crimes… [M]oreover, reliance on mental retardation as a mitigating factor can be a two edged sword that may enhance the likelihood that the aggravating factor of future dangerousness will be found by the jury."(176)

As in the case of individuals with mental retardation, most people suffering from mental illness will never commit a violent crime. Nevertheless, a mentally ill defendant who has committed a capital offence may be at heightened and unfair risk of receiving a death sentence compared to defendants with no or lesser impairments, or in some cases being wrongfully convicted:

29. Even if found competent to stand trial, the defendant’s capacity to assist their lawyer or understand the proceedings may still be impaired;

30. As a part of their illness, a defendant suffering from a mental condition such as severe depression or a paranoid disorder may refuse to allow mitigation to be presented or may even plead guilty and demand the death sentence.

31. Due to the stigma attached to mental illness, not least if it is linked to a family history of such illness or to childhood abuse, a defendant may seek to downplay his or her ailment or simply not be a good reporter of it to defence counsel.

32. If the defendant’s mental illness is still showing symptoms at the time of the trial, he or she may act irrationally or appear to do so to jurors, heightening fears of future dangerousness, a highly aggravating factor in the minds of capital jurors.

33. A mentally ill defendant, especially if taking medication at the time of the trial, may display a flat affect and be perceived as remorseless, again a highly aggravating factor in the mind of capital jurors.

34. A mentally ill defendant may be particularly difficult to represent for an under-resourced or inexperienced defence lawyer;

35. A mentally ill defendant may be particularly vulnerable to unscrupulous prosecutors or police;

36. Jurors ignorant of or frightened by mental illness or suspicious of the state’s capacity to appropriately treat the mentally ill may be swayed towards a death sentence, fearing the defendant’s propensity for future violence.

37. If their crime was committed as a result of mental illness, it may appear motiveless. Thus, the offence may display a senseless brutality, further heightening the jury’s fears about future dangerousness.

Arbitrariness thus threatens to be a result of the fact that people with mental retardation have been exempted from execution while those with serious mental illness at the time of the crime have not.

In addition, the choices made by mentally ill capital defendants and inmates can inject a further arbitrariness into the death penalty process. Due to mental illness, a defendant may plead guilty, demand the death penalty and/or refuse to appeal their death sentence beyond the mandatory direct appeal. Even if found competent to do so, this potentially adds to the arbitrariness of the death penalty. Such inmates could win on appeal, as happened in Pennsylvania in the case of Joey Miller. He gave up his appeals and came 48 hours from execution before he changed his mind and allowed an appeal to federal court to be filed. Six months after the Atkins v. Virginiaruling, Joey Miller’s death sentence was commuted to life imprisonment because of his mental retardation.

The rate of error in US capital cases has been found to be very high.(177) Dissenting against their colleagues’ refusal to stop the execution of an Arkansas inmate who had waived his appeals, two US Supreme Court Justices warned in 1990 that such statistics "make clear that in the absence of some form of appellate review, an unacceptably high percentage of criminal defendants would be wrongfully executed – ‘wrongfully’ because they were innocent of the crime, undeserving of the severest punishment relative to similarly situated offenders, or denied essential procedural protections by the State".(178) The case of Joey Miller, who would have been killed if he had not allowed his appeal to be filed, illustrates this point.

In 1977, Justice White of the US Supreme Court argued that "the consent of a convicted defendant in a criminal case does not privilege a State to impose a punishment otherwise forbidden by the Eighth Amendment". Two years after that, Justice Marshall protested that "the Court has permitted the State’s mechanism of execution to be triggered by an entirely arbitrary factor: the defendant’s decision to acquiesce in his own death".(179) Mental illness has often appeared to be trigger in this acquiescence, and thus the cause of potential arbitrariness and error left irreversible by the finality of execution (see Death Wish 2, below).

James Elledge was executed in Washington State on 28 August 2001 for the murder of a woman in 1998. He had turned himself in after the crime, after allegedly twice attempting suicide. At the trial, he pleaded guilty. He refused to allow any mitigating evidence to be presented, telling the jury that "the wicked part of me needs to die". The jury was therefore left unaware of evidence that there was a history of mental illness in his family, and that he himself suffered from mental illness. On death row, Elledge refused to appeal against his death sentence. On 6 August 2001, the state Clemency and Pardons Board voted 3-2 against clemency. One of the dissenting members said that the case was "very troubling", in that the outcome of the trial might have been different "depending on whether [the jury] got the full story or not".

A double-edged sword: aggravator andmitigator?

In Texas, the state responsible for more than a third of all US executions, jurors can only hand down a death sentence if they decide that the defendant will likely commit future acts of violence if allowed to live, even in prison. This is the so-called "future dangerousness" question. In a Texas case in 1989, Penry v. Lynaugh, the US Supreme Court recognized that evidence of a defendant’s mental retardation could act as a "two-edged sword", by being both a mitigating factor against, and an aggravating factor for, a death sentence. The offender’s mental retardation, the Court wrote, "may diminish his blameworthiness for his crime even as it indicates that there is a probability that he will be dangerous in the future".(180)

At that time, the sentencing instructions provided to Texas juries gave them no explicit way to give mitigating effect to such evidence.(181) Indeed a year before the Penryruling, two US Supreme Court Justices had dissented against the Court’s refusal to take the case of Robert Streetman, a Texas death row inmate who had sustained a serious head injury as a child and thereafter suffered from a series of mental problems including persistent delusions and hallucinations. In the dissent, Justices Brennan and Marshall wrote: "the record discloses that Streetman has had a history of mental illness, stemming from an injury incurred while he was in the fifth grade, a circumstance that in every other jurisdiction would be considered mitigating. Yet the jury that sentenced him to die could draw but one inference from this evidence: Streetman posed a substantial threat of future dangerousness… [E]vidence that could evoke feelings of sympathy or convince a jury that the defendant is not culpable enough to deserve death is perversely transformed into a factor militating solely in favor of death...."(182) Robert Streetman was executed in 1988.

However, the Supreme Court’s analogy of a "two-edged sword" was not limited to one particular state – Texas – at one particular time – pre-1989. A defendant’s future dangerousness has been shown to be a highly aggravating factor in the minds of capital jurors in the USA. A jury which has just convicted a mentally ill defendant of a violent capital crime may have a particular fear of his or her capacity for future violence, or distrust the state’s ability or willingness to ensure appropriate mental health care and public security. In Texas, a finding of "future dangerousness" remains a prerequisite for a death sentence. Even though capital jurors in Texas now have a specific instruction that allows them to give mitigating weight to any aspect of the crime or defendant they think calls for lenience, fear, prejudice or ignorance may still leave mental illness on balance as an aggravating factor in their minds. Indeed, studies have found that capital jurors can view a defendant’s serious mental illness as an aggravating factor.(183)

One study, for example, describes a case in which a California jury returned a death sentence despite being persuaded by expert psychiatric witnesses that the defendant had a severe mental illness. However, the jurors were also concerned about the defendant’s future dangerousness. One juror questioned for this study said: "What we decided was that regardless of his illness, if he was a danger to society, then the only solution would be the capital punishment". Another juror, asked to characterize the strongest factors for and against handing down the death penalty in the case, responded in a way that captured the potentially double-edged nature of mental illness in the minds of capital jurors: "For: His incurability. Against: His illness".(184) Yet the Supreme Court has suggested that mental illness is among those factors "that actually should militate in favor of a lesser penalty".(185) For such illness to act as an aggravating factor would be unconstitutional.

Arguing for a death sentence, the prosecutor at the 1995 Texas trial of seriously mentally ill defendant James Colburn (see above p.56) suggested that the jury might prevent mass murder if they voted for execution: "To save the life of an innocent person is a huge thing when it is compared with the taking of a person that voluntarily chose to kill. How many lives will it save? I submit to you, even if there’s a chance it will save one, he should be executed. But who knows, it may save one, it may save a dozen, it may save a hundred." Despite such exhortations, the jury evidently wished to consider a life sentence for this mentally ill man. During its deliberations, the jury foreman wrote a note to the trial judge asking if the defendant would be eligible for parole if he received a life sentence. The judge replied that the jurors were not to concern themselves with the issue of parole.(186)

In 1999, the foreman from the Colburn jury signed an affidavit. In it, he stated that, in his opinion, "the lack of information regarding when Mr Colburn could be released was a significant factor in some jurors’ decisions at the punishment phase". This would appear to be confirmed by the affidavit of another member of the jury who said that her "central concern was with protecting society, and the only way I thought I could do that was to make sure that Mr Colburn did not receive parole... [Th]e Judge’s reply only increased our frustration. We still had no idea if Mr Colburn would be released in ten, fifteen, twenty or forty years... Consequently, jurors continued to discuss the possibility that Mr Colburn would be released early". This juror said that the "primary reason" that she had voted for a death sentence was because of her "fear that Mr Colburn would be released early. Mr Colburn was 34 years old at trial. Had I realized that he would not finish serving his prison time until he was over 70 years of age, I sincerely believe that I would have voted to give him a life sentence".

The aggravator/mitigator dilemma faced by lawyers representing mentally ill defendants has been noted within the judiciary. For example, in rejecting claims that the trial lawyers of Florida death row inmate Pedro Medina (see above) had been ineffective for failing to investigate and present evidence of his mental illness to the jury, the trial judge wrote in post-conviction proceedings:

"the testimony of the two psychologists and one psychiatrist…showed in essence that defendant was psychotic; he had organic brain damage; he was diagnosed to be suffering from paranoid schizophrenia or major depressive disorder, recurrent, with psychosis, of long standing, and he was potentially dangerous. Only the psychiatrist testified that Medina could be rehabilitated and then only if stabilized by proper medication and therapy. All of this testimony was derogatory and would have had, if anything, an adverse effect on the jury… [I]t would have more likely strengthened the jury’s resolve to recommend a sentence of death."(187)

The Florida Supreme Court upheld the lower court’s finding that the defence lawyers had not performed inadequately. As one of its Justices wrote in 1997, the Court made such a finding "not on the basis that the illness was not serious, but rather by approving the trial court’s determination that the evidence of mental illness may have harmed Medina’s case".(188) Pedro Medina was executed in March 1997.

In some states, such as Oklahoma and Virginia – which, along with Texas, account for half of the USA’s executions since 1977 – "future dangerousness" is one of a number of possible aggravating factors that can make a murder eligible for the death penalty. Robert Bryan was executed in Oklahoma on 8 June 2004 for killing his aunt in 1993. He had been diagnosed with chronic paranoid schizophrenia, and had a history of organic brain disease which may have been related to his severe diabetes dating back decades. Despite serious concerns about his competence to stand trial, and the fact that he had previously been found incompetent to stand trial, Robert Bryan’s trial lawyer presented no mental health evidence at either stage of the trial. The US Court of Appeals for the 10th Circuit upheld his death sentence in 2003. The federal court found that the lawyer had acted "strategically" by not raising mental health mitigation at the sentencing phase of the trial, noting that "he was fearful that any [mental health testimony] during the second stage would do more harm than good." The lawyer, it found, had been concerned that any such testimony "might play into the prosecution’s case that Bryan was a continuing threat to society". (189)

In the USA, appeal courts are required to give substantial deference to the performance of trial lawyers and federal appeal courts to the rulings of their state counterparts. In many cases, seemingly excessive deference has led to death sentences being upheld on the grounds that the failure of trial counsel to present mental health evidence was either "harmless" to the outcome of the trial or the result of "strategic" choice. In the above case of Robert Bryan, for example, one of the 10th Circuit judges wrote a strong dissent, joined by two colleagues:

"Robert Leroy Bryan is a delusional, severely diabetic victim of organic brain damage… Mr Bryan’s counsel provided the most ineffective defense I have ever seen, amounting to a concession of guilt and relating none of the reams of compelling mitigating evidence… [W]e cannot insulate an unreasonable tactic not to present mitigating evidence by labelling it a two-edged sword. Mr Bryan’s lawyer was clearly ineffective as a matter of law."

A member of the ABA-IRR Task Force (see Appendix 2) has pointed to evidence that "contrary to the apparent beliefs of juries and prosecutors, offenders with mental disorder do notpose a greater risk than their non-disordered counterparts".(190) Moreover, informed jurors may be sympathetic to mental health mitigation if it is properly presented in a way that seeks to explain, not excuse, the defendant’s actions, and if they do not have their fears or prejudices stoked by a state in pursuit of a death sentence. In a number of cases, jurors have later come forward to say that they would not have voted for death if they had known the extent of the defendant’s mental impairments. For example:

38. In the case of Abu-Ali Abdur’Rahman, on death row in Tennessee, eight of the jurors from his trial have signed affidavits saying that they might or would not have voted for death if they had heard the mitigating evidence of his childhood abuse and mental health problems, including post-traumatic stress disorder. For example, one of them said: "If I had known anything about the defendant’s background, that he had been abused as a child, and that he may have suffered from a mental disorder or mental illness that could help explain why he did what he did, then I do not believe that I would have voted for the death penalty". Another wrote: "It is my belief that I would have voted for life for [Abdur’Rahman] rather than death if I had heard the details of this man’s life and the extent of his mental illness."And another: "I would have voted to know all about the way his father treated him and about his mental problems. I don’t want [him] put to death".

40. In the case of Arthur Baird, a seriously mentally ill man sentenced to death in Indiana,, six jurors from the original trial later indicated that they would have supported a sentence of life imprisonment without parole, which was not an option at the time of the trial.(191)

41. The foreman of the jury from James Chambers’ trial in Missouri later signed an affidavit stating his belief that the jury would not have sentenced Chambers to death if it had heard evidence of his mental limitations, which the defence lawyer had failed to present. A mental evaluation of Chambers in 1982 found that he had suffered from depression for about two months prior to the murder. He was reported to have spent time in five mental hospitals for evaluation and treatment during his lifetime. He suffered a serious head injury at the age of six, and is alleged to have been regularly beaten by his father. He had been diagnosed as suffering from "incipient paranoid schizophrenia". None of this evidence had been presented to the jury. However, James Chambers was executed in 2000.

42. In 2000, five jurors signed statements that they would not have sentenced Alexander Williams to death if they had known about his abusive childhood and serious mental illness, including schizophrenia. His execution was halted in 2002 and his death sentence commuted.

43. Three jurors from the trial of Tracy Hansen in Mississippi later signed affidavits that they might not or would not have voted for a death sentence if they had heard of the physical, sexual and psychological abuse Hansen suffered as a child, and of his subsequent substance abuse and brain damage. One of them stated: "very little evidence was presented on Tracy Hansen’s behalf… If I am to be responsible for so serious a penalty as the death penalty, I deserve to hear all of the evidence, both for and against the defendant, before making my decision." Tracy Hansen was executed in July 2002.

44. Donald Beardslee was executed in California on 19 January 2005. One of the jurors from his trial had said that if he had known that Beardslee had severe brain damage, as revealed only after the trial, he would not have voted for the death penalty.(192) One such vote at the trial would have meant a life rather than a death sentence.

45. Several of the jurors from Troy Kunkle’s trial in Texas later stated that they would have voted for life, but had felt constrained by the jury instructions they were given. One of them stated that "I feel that the evidence of mental health problems, especially the schizophrenia, would have made a big difference", if such evidence had been presented. Troy Kunkle was executed on 25 January 2005.

Apparently motiveless crimes

An apparently motiveless murder may be more likely to end in a death sentence, given that a jury may consider a random inexplicable act of extreme violence as an indicator of more to come. A violent crime that is the result of a delusional mind may appear to the rational observer to be motiveless and generate fear for that reason. This will be even more so if the state plays on those fears.

Kelsey Patterson committed just such a crime. The state played on the jurors’ fears. The result was the execution of a seriously mentally ill man. There is no doubt that it was Kelsey Patterson who shot and killed Louis Oates and Dorothy Harris on 25 September 1992. There would appear likewise to be little doubt that his serious mental illness lay behind the crime. After the shootings, Kelsey Patterson took off all his clothes except his socks and began to pace up and down the street, gesticulating and yelling incomprehensibly until the police arrived.

Kelsey Patterson had long suffered from paranoid schizophrenia. In 2000, a federal magistrate judge wrote that "Patterson had no motive for the killings – he claims he commits acts involuntarily and outside forces control him through implants in his brain and body. Patterson has consistently maintained he is the victim of an elaborate conspiracy, and his lawyers and his doctors are part of that conspiracy".(193) He was found competent to stand trial despite his bizarre behaviour driven by his delusions and paranoia. Indeed, the federal judge magistrate wrote in his 2000 opinion that if he were reviewing this question de novo(anew), he would have found that Kelsey Patterson was incompetent to stand trial. However, he deferred to the jury’s finding of competence. During his actual trial, Kelsey Patterson’s mental illness was again on display and he was repeatedly removed from the courtroom when he kept interrupting. The defence plea was one of not guilty by reason of insanity – that is, that at the time of the crime he had not known right from wrong. The prosecutor had argued to the jury that to find a defendant legally insane on the basis that he has been diagnosed with schizophrenia would be tantamount to "a licence to kill", and suggested that the defendant could be faking his illness. Kelsey Patterson’s jury rejected the insanity plea and sentenced him to death. He was executed on 18 May 2004.

Stephen Vrabel was executed in Ohio two months later, on 14 July 2004. He had been convicted of the murders of Susan Clemente, with whom he lived, and their three-year-old daughter, Lisa. On 3 March 1989, he bought a handgun and ammunition from a gun shop in Youngstown, near where they lived. In the apartment later that day, Stephen Vrabel shot Susan Clemente as she walked into the kitchen, and then shot her again when she was on the floor. It was an apparently motiveless crime, the couple had apparently had no recent argument or confrontation. He subsequently put both bodies in the refrigerator, the child’s in the freezer compartment along with her favourite toys. Stephen Vrabel himself continued to live in the apartment for the rest of March 1989.(194)

The following month, while he was away from the apartment, the bodies were found by the landlord. On hearing this, Stephen Vrabel conferred with a priest and turned himself in to the police. He admitted to the killings, saying that he did not know why he had first shot his girlfriend. He said that he had fired the second shot in order that she did not suffer any more, and that he had then shot Lisa because he surmised that her mother was dead and her father would be going to prison, leaving her alone. He directed the police to the gun used in the shootings. The police never discovered a motive for the crime. Stephen Vrabel had no significant prior criminal history.

Vrabel was found incompetent to stand trial because of his mental illness. He was committed to a maximum security psychiatric hospital, where he was forcibly medicated, and where he remained for the next five years until he was found competent to stand trial in 1995. In assessment reports in August 1995, one mental health professional concluded that Stephen Vrabel was "capable of participating meaningfully in his own defense", and another concluded that Vrabel had not known the "wrongfulness of his act" at the time of the murders, but that he was "capable of working with his attorney and aiding in his defense, though his cooperation will be erratic". The trial was held in September 1995. The jury rejected Vrabel’s plea of not guilty by reason of insanity and convicted him of murder. At the sentencing phase, Stephen Vrabel presented only his own unsworn statement as evidence. During his statement, he said: "Basically what I am saying is there is nothing of a mitigatory factor that can outweigh the aggravating circumstances that occurred most notably of two people’s lives being wiped out". The jury agreed and sentenced him to death.

In 2003, responding to Stephen Vrabel’s direct (mandatory) appeal, the Ohio Supreme Court upheld the death sentence by a 4-3 vote, despite the majority acknowledging that Stephen Vrabel had been "evaluated by various mental health professionals as suffering from paranoid schizophrenia or a personality disorder with schizophrenic features". Chief Justice Thomas Moyer, joined by two other Justices, wrote in dissent:

"I am persuaded by clear evidence in the record that [Stephen Vrabel] suffers from a severe mental illness. On the record before us, I cannot conclude beyond a reasonable doubt that Vrabel’s mental illness did not causally contribute to his tragic criminal conduct, thereby reducing his moral culpability to a level inconsistent with the imposition of the ultimate penalty of death. I do not believe that [his] crime falls within the category of the most heinous of murders for which the [Ohio] General Assembly has properly reserved the death penalty… [B]oth the facts surrounding the murders and the bizarre reasoning employed by Vrabel in explaining them are certainly consistent with the conclusion that Vrabel suffered from a mental disease or defect at the time of his criminal course of conduct".(195)

Stephen Vrabel did not pursue his appeals. Once an execution date was set in 2004, the Ohio clemency board considered the case at a meeting on 25 June 2004. The board was presented no petition for clemency. It noted that among the state’s arguments opposing clemency was: "The senselessness of the crime – no explanation of it has been given". (196) With execution, of course, any hope for an explanation was extinguished.

Particularly "aggravated" crimes

Only a tiny percentage of murders in the USA lead to a death sentence, and an even smaller number end in execution. In order to qualify as capital crime in the first place a murder has to have "aggravating" circumstances. It has been estimated that only around 10 to 15 per cent of murders in the USA are "death-eligible". Only around one per cent of murders result in a death sentence, and fewer still end in execution. As Amnesty International has illustrated elsewhere, this rate of attrition is not a sign of a system reliably selecting the "worst of the worst", but a shameful lottery marked by arbitrariness, discrimination and error.(197) Indeed, the system of using "aggravating" factors to select which crimes will result in the death penalty may actually have an unfair impact on defendants with mental illness. Some of the crimes which appear to have been the result of mental illness are particularly bloody, brutal or frenzied. As with murders that appear motiveless, those that are particularly stomach-wrenching are more likely to end in a death sentence. Again, however, the brutality may be the result of a delusional or tormented mind, not some coolly calculated "clean" killing of an assassin.

Larry Robison’s crime was just such an offence. He decapitated his friend Ricky Bryant, and shot and slit the throats of four neighbours. Larry Robison later wrote about the killings. Entitled The Making of a Schizophrenic, the 31-page document relates how he had been called upon to liberate souls to ascend to a higher plane of existence. He recounted his hallucination that Ricky Bryant had urged him on even as he worked to sever his friend’s head from his body. Robison described how a digital clock in the bathroom had flipped over to display a row of zeros and had then begun acting like a stop clock. He wrote that he had interpreted this as a message that he had to liberate as many souls as possible before the liberation of his own.

The prosecution presented an expert who stated that there was no evidence that Larry Robison had ever suffered from mental illness, and argued that he was faking it. None of the three doctors who had diagnosed Robison as suffering from paranoid schizophrenia prior to the crimes of August 1982 testified at the trial. The prosecutor urged the jury to reject Larry Robison’s insanity defence, suggesting that acceptance of such a plea means that the defendant’s "conduct is excused under the law" and "he cannot be held responsible". Given that a Texas jury cannot be told what is the consequence of a successful insanity plea, such comments are likely to have played on juror fears of releasing a dangerous offender back into the community. The prosecutor also argued to the jury to recognize Larry Robison’s crime as one against which to "unleash" the "outrage of society and the righteous indignation of our society". The jury agreed, and their verdict was carried out in the Texas execution chamber on 21 January 2000.

James Bigby was sentenced to death in 1991 in Texas for a double murder despite one of the most notoriously pro-prosecution psychiatrists in the country testifying that this undoubtedly aggravated crime was the product of Bigby’s paranoid schizophrenia. James Bigby was convicted of murdering Michael Trekell and his baby son in their home. The former was shot in the head, and the latter was drowned in the sink. James Bigby gave himself up and confessed to the killings. At his trial, Dr James Grigson, who appeared for the prosecution in scores of death penalty cases in Texas (see Unethical, below), testified that at the time of the murders, James Bigby was operating under the schizophrenia-induced delusion that Michael Trekell was involved in a conspiracy against him. Dr Grigson testified that "without the delusional state, without his schizophrenia, he would not have killed that person. There was no reason for it". The baby boy was killed, Dr Grigson said, as "part of an irrational act".(198)

The killing of a law enforcement official is a particularly aggravated crime, and in certain jurisdictions it is a statutory aggravating factor making a crime eligible for the death penalty. Yet some such crimes appear to have specifically been the product of paranoid delusions in which the offender believes in the existence of a malevolent official conspiracy. Two such cases involved Russell Weston and Thomas Provenzano. The federal government has not ruled out seeking a death sentence against Weston if he is found competent to stand trial. Provenzano was put to death by the Florida authorities in 2000.

According to the indictment, on 24 July 1998, Russell Weston walked into the US Capitol building in Washington, DC, and shot dead two officers of the US Capitol Police and wounded a third. Russell Weston has a long history of mental illness, including paranoid schizophrenia.(199) For example, during the mid-1990’s he had developed the notion that he was in possession of secret information that made him a target of the government, and that rocking on the porch of his Montana cabin would make him a less easy target to hit. In 1996, he initiated an interview at the CIA’s headquarters at Langley in Virginia, in which he "frequently returned to systematized bizarre delusional themes with paranoid and grandiose features". During the interview he told the CIA interviewer that before birth everyone is "bombarded with a microwave" that "mutates the cells", that had been cloned at birth, and that his father had been "hit by that interactive beam". He asked the agent, "how do you get a job at the CIA anyway? I’ve worked as an operative for the last 33 years" (Weston was 39 at the time). Three months later, after he showed signs of becoming dangerous, he was involuntarily committed to a psychiatric facility and given anti-psychotic medication, including forcibly. He was discharged after seven weeks, but his illness deteriorated as he failed to take his medication or return to hospital. In the week prior to 24 July 1998, he was said to be preoccupied with bizarre delusional beliefs: "In the greenhouse of time and neglect, Weston’s illness worsened. His obsession with Washington grew. The city was diseased by ‘Black Heva’. He was convinced that the override console for his imaginary Ruby Satellite System was kept on the first floor of the US Capitol."(200)

For seven years, the US Government has refused to rule out seeking the death penalty against Russell Weston if he is found competent to stand trial. They have been allowed by the courts to forcibly medicate him to render him competent to be tried.(201) At the time of writing, he had not yet been found to be competent.

Thomas Provenzano was executed in Florida in June 2000 for killing a bailiff, Arnie Wilkerson, in Orange County Courthouse, Orlando, in 1984. The shooting left two other bailiffs paralyzed, one of whom died in 1991. Provenzano’s serious mental illness predated his crime.(202) His clemency petition to Governor Jeb Bush in June 2000 contained the following observations:

"Thomas Provenzano is a 50-year-old man with a life-long history of mental illness. By his early teens, Thomas’s family noticed that he became unusually wary and suspicious of people. He grew increasingly anxious around others, even being suspicious of friends and family. By 1980 he refused to eat or drink at anyone’s home but his own. He began telling his family that the police and courts were really trying to hurt people, particularly him. In August 1983, Thomas was stopped by two Orlando police officers for a traffic violation, and an altercation occurred resulting in charges for disorderly conduct. Thomas became obsessed with the case against him, constantly checking the court file and monitoring the whereabouts of the two officers. No matter what the outcome of his court hearing would be, it would have had little impact on Thomas’s life. But he could not see it that way. By then Thomas had developed a fixed delusion in which he was Jesus Christ, and the police and courts were engaged in a conspiracy against him. When his name was called on January 10, 1984, and a bailiff approached him, Thomas believed this was it. He took out a gun and fired at sheriff’s deputies. In the melee that followed Bailiff William Arnold Wilkerson was killed, and Officer Mark Parker was left paralyzed. Thomas did not shoot at any civilians."

At his trial the defence and prosecution experts had all agreed that Thomas Provenzano was mentally ill, and that his paranoid fears included the fixed delusional belief that he was being persecuted by the legal system and that these fears had contributed to his crime. However, the jury rejected his insanity defence and voted by the narrowest of margins, 7-5, that he should be executed. On direct appeal, the then Chief Justice of the Florida Supreme Court dissented against the death sentence, saying that he believed the evidence was "overwhelming that Provenzano’s capacity to appreciate the criminality of his conduct or to conform his conduct to the requirements of the law" had been "substantially impaired".(203)

Violent crimes involving children, again, are particularly "aggravated". In some states, the fact that the murder victim is a child will be the factor that makes the crime eligible for the death penalty.